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1474 ST. PAUL ST. 


CAHL li. SiVilTH 

Biennial Report 

of the 

Attorney General 

of the 

State of Colorado 

Years 1933-1934 


Attorney General 

The Bradford-Robinson Ptg. Co. 

Denver, Colorado 


From the Organization of the State 

A. J. Sampson 1877-1878 

Charles W. Wright 1879-1880 

Charles H. Toll 1881-1882 

David F. Urmy 1S83-1884 

Theodore H. Thomas 1885-1886 

Alvin Marsh 1887-1888 

Samuel W. Jones 1889-1890 

Joseph H. Maupin 1891-1892 

Enprene Engley 1893-1894 

Byron L. Carr 1895-1898 

David M. Campbell 1899-1900 

Charles C. Post 1901-1902 

Nathan C. Miller 1903-1906 

William H. Dickson 1907-1908 

John T. Barnett 1909-1910 

Benjamin Griffith 1911-1912 

Fred Farrar 1913-1916 

Leslie E. Hubbard 1917-1918 

Victor E. Keyes 1919-1922 

Russell W. Fleming 1923 

Wayne C. Williams 1924 

William L. Boatright 1925-1928 

Robert E. Winbourn 1929-1930 

John S. Underwood 1930 

Clarence L. Ireland ^ 1931-1932 

Paul P ProHser 1933-1934 


1. Division of Legal Affairs 

Paul P. Prosser, Attorney General 

NoRRis C. Bakke, Deputy Attorney General 
Charles Roach, First Assistant Attorney General 

Assistant Attorneys General 
Shrader p. Howell Oliver Dean 

^Charles H. Queary M. S. Ginsberg 

Hazel M. Costello Pierpont Fuller, Jr. 

Richard E. Concur J. Gt.exn Donaldson 

^W alter F. Scherer 

Stenographic and Clerical Assistants 
Miss Margaret E. Fallon Ann Landy 

Mrs. Elizabeth D. Patten 

2. Inheritance Tax Commission 

George Hetherington, Inheritance Tax Commissioner and 

Assistant Attorney General 
Arthur M. Morris 0. S. Brinker 

Deputy Inheritance Tax Commissioners 
G. W. MoscRiPT, Inheritance Tax Appraiser 

Stenographic and Clerical Assistants 
Mrs. Margaret M. Kranich Mrs. Marie A. Powell 

Mrs. Aimee Meredith 

3. Division of Securities 

Paul P. Prosser, Ex-Officio Commissioner of Securities 
Walter F. Scherer, Assistant Commissioner of Securities 
^Theodore Chisholm, Assistant Commissioner of Securities 

4. Legislative Reference Office 

*Allen Moore, Director 
Charles H. Queary, Director 
Clair T. Sippel, Secretary 

5. Public Utilities Commission 


Edward E. Whep^ler, Chairmnn Worth Allen 

Dan S. Jones 

6. Division of Commerce 

(a) State Bank Commission 

Grant McFerson, Commissioner 

(b) State Insurance Department 

Jackson Cochrane, Commissioner 

(c) Building and Loan Commission 

James R. McClelland, Commissioner 

^Appointed Legislative Reference Director Novemtoer 19, 1934. 

'Appointed December 1, 1934. ^ 

•Appointed December 1, 1934, to succeed Walter F. Scherer. 

'Resigned August 1, 1934. 







Schedule I 

To His Excellency, 


Governor of the State of Colorado. 


Complying with my official duty, I hereby respectfully submit 
a report of the office of Attorney General for the biennial period 
from January 10, 1933, to and including January 7, 1935. 


(1) Increased Work of ihe Office. 

Twenty-five Attorneys General of Colorado, preceding me, have 
come and gone; but never have the demands upon this office been 
greater, never have its duties been more multitudinous, never has 
its responsibility been of such far-reaching importance, as during 
the biennial period of 1933-1934. 

Unparalleled economic conditions have combined to produce an 
appalling emergency in Colorado, as in the Nation, and out of this 
emergency there have arisen continuously for the consideration of 
this office innumerable questions relating to our State, county and 
municipal governments, the like of which have never been presented 

Every department of our State government, every agency of 
the State, every one of our State institutions have all been con- 
fronted during this emergency with many novel and unusual ques- 
tions, which have been referred to this office for determination. 

In the consideration of laws designed to relieve the existing 
emergency in Colorado, members of the 29th General Assembly, at 

2 Biennial Report 

their re^lar session and at their two extraordinary sessions, ob- 
tained opinions from this office in respect to manj^ difficult and 
vexatious questions; and some of the laws actually enacted by that 
body for the above-mentioned purpose involved Constitutional ques- 
tions that were without precedent in the jurisprudence of the State. 

Moreover, legislation enacted by the Congress and intended to 
relieve the existing emergency in the Nation, has served to bring to 
this office, and still serves to bring to this office, for its consideration 
a series of questions that are at once novel and difficult. 

All of these questions have been so numerous, as they have 
been presented from time to time, that the routine work of the 
office in giving opinions has been twice as great as that during any 
other previous biennium. 

In addition to the vast amount of labor that has been placed 
upon the office simply as a result of the emergency in the State and 
in the Nation, the duties of the office have been greatly augmented 
in practically every branch of its work. 

(2) Increased Scope of the Office. 

The official scope and authority of this office was increased by 
the reorganization of our Stat-^ government under the Administra- 
tive Code, that great constructive measure enacted by the 29th Gen- 
eral Assembly, which makes the Attorney General the head of the 
Department of Law. 

(3) Office has heen conducted as a Law Office. 

Even in normal times the duties resting upon the Attorney 
General's office are multitudinous. They relate to and affect every 
department of State government, every administrative official of 
the State from the Governor on down, every head of the various 
institutions of the State, and in numerous instances they relate to 
and affect various district and county officers. 

During these times of stress and transition it has been the con- 
stant eiuleavor of every member of the Attorney Generars staff, 
individually and collectively, ic give full and complete cooperation 
to the various officials just meritioned. All of these various officers 
have had vexatious questions to arise, in respect to which they have 
requested opinions from the Attorney General. Indeed, some of the 
most diffieult problems that have be<'n presented to this office have 
come from county officers, in respect to mattei*s that are largely 
of local concern. 

In handling? the infinitude of legal affairs that require the at- 
tention of the Attorney General we have conducted this office as a 
law office. We have not tried to "play politics." and no official 
conduct on the part of the Attorney General has been dictated by 
partisan expediency. 

Attorney General of Colorado 3 

(4) Membership on Executive Council. 

As a member of the Executive Council, which is charged with 
the serious responsibility of exercising supervision over the fiscal 
affairs of the State, it has been, as you know, the constant endeavor 
both of myself, as Attorney General, and of Mr. Norris C. Bakke, 
as Deputy Attorney General, to give to your administrative pro- 
gram our full cooperation, to the end that increasing economy and 
efficiency may be had in the administration of the State's affairs. 


(1) Fending Suits m United States Supreme Court. 
Regarded always by me as being of first importance in the 

legal affairs of the State are the suits relating to the waters of our 
inter-state rivers. 

More precious, even, than the gold in our hills are the waters 
of these inter-state rivers. 

You, as Governor, are entirely familiar with the acute contro- 
versies that have developed as between Colorado and certain of her 
sister states on account of the competitive demands upon the limited 
supply of waters afforded by these inter-state streams. 

Two of these controversies have resolved themselves into suits 
now pending before the Supreme Court of the United States, which, 
sitting as a sort of high court of arbitration, must decide these con- 
troversies between quasi-sovereignties according to the principle of 
equitable apportionment. 

One of these suits now pending in the Supreme Court of the 
United States is that of Wyoming v. Colorado, involving the waters 
of the Laramie River ; the other is that of Colorado v. Kansas, in- 
volving the waters of the Arkansas River; and the respective con- 
troversies involved in both of these suits have been before the 
Supreme Court of the United States over a period of many years. 

(2) Status of Wyoming v. Colorado. 

In the case of Wyoming v. Colorado, still pending in the Su- 
preme Court of the United States, both Wyoming and Colorado 
have completed the tal?:ing before two Special Commissioners of 
certain additional testimony required in that suit. Both Wyoming 
and Colorado have prepared their respective abstracts of such testi- 
mony, and these abstracts, which are now in the hands of the two 
Commissioners, will be forwarded within the next few weeks to the 
Clerk of the Supreme Court of the United States. Upon the receipt 
of such abstracts of the testimony, the Supreme Court of the United 
States will order them to be opened and published, and thereafter 
the same will be printed in accordance with the order of that court. 
Following the printing of such abstracts of the testimony, briefs 

4 Biennial Report 

will be filed, and eventually a supplemental decree will be entered 
by that court, which, I anticipate, will definitely fix and determine 
the rights of Colorado water-users in and to the waters of the 
Laramie River. 

(3) Status of Kansas v. Colorado. 

In Kansas v. Colorado, involving the waters of the Arkansas 
River, a Special Commissioner was also appointed by the Supreme 
Court of the United States to take certain additional testimony. 
Testimony in chief on behalf of Colorado, as well as testimony on 
behalf of Kansas, has now been taken; and testimony in rebuttal 
will be shortly taken on behaJf of Colorado. Here, again, is an 
inter-state water controversy between Kansas and Colorado, quasi- 
sovereignties, which only the Supreme Court of the United States 
can definitely decide and determine. 

However, both Kansas and Colorado have made application to 
the Public Works Administration of the United States Government 
for the construction of the Caddoa Reservoir. This application has 
since been taken up with the Federal Administration of Unemploy- 
ment Relief, and an allocation has by him been made of $30,000 for 
preliminary surveys. If the Cciddoa Dam should be constructed, the 
flood waters of the Arkansas River, now going each year to waste, 
would be conserved and developed for the use of both Kansas and 
Colorado; and the construction of such a project, which this office 
has vigorously advocated in conjunction with you and the State 
Engineer, would remove the present causes for controversy in re- 
spect to that river as between Kansas and Colorado. 

(1) Arizona v. California et al. 

In the case of Arizona v. Californm it ai., 292 U. S. 341, in 
which the State of Colorado was also a party defendant, the State 
of Arizona filed a motion before the Supreme Court of the United 
States, asking leave to file a bill of complaint for the purpose of 
perpetuating the testimony of certain witnes.s('s who had partici- 
pated in the negotiation of tho Colorado River roini)act. 

Colorado, Nevada, New Mexico, Utah and Wyoming, after a 
conference had at Denver between representatives of those states, 
filed a joint return to the rule of the Supreme Court of the United 
States to show cause why leave to file such bill should not be 
granted to Arizona. 

The motion of Arizona for leave to file such bill was denied by 
the Supreme Court of the United States. 

Attorney General of Colorado 5 

(2) M. C. Hinderlider, as State Engineer of the State of Colo- 
rado, et al. etc., Appellants, v. La Plata Einer & Cherry Creek Ditch 
Company, Appellee. 

This case (291 U. S. 650) which involved the compact between 
New Mexico and Colorado in respect to the use of the waters of the 
La Plata River, was an attempted appeal from the judgment ren- 
dered therein by the Supreme Court of Colorado (93 Colo. 128). 

The Supreme Court of the United States declined to take juris- 
diction in this case, and dismissed the appeal for want of a final 
judgment. The case is now pending in the District Court of La 
Plata County, to which a remittitur was ordered by the Supreme 
Court of Colorado. 

(3) Bio Grande Compact. 

A meeting of the Commissioners of the signatory States of 
Colorado, New Mexico and Texas was held at Santa Fe on Decem- 
ber 10-11, 1934, for the purpose of agreeing upon an extension of 
the present Compact, or of negotiating a new one, in respect to the 
use of the waters of the Rio Grande River. The present Compact 
will expire June 1, 1935 ; and in all negotiations which will be held 
in the meantime for the extension of such Compact, or for the execu- 
tion of a new one, this office will give its fullest cooperation as coun- 
sel to Mr. M. C. Hinderlider, Interstate River Commissioner. 

(4) Proposed Compact relating to Bepuhlican and Arickar&e 

There is also pending the proposal of negotiating a compact 
between the State of Colorado and the State of Nebraska, in respect 
to the utilization and disposition of the waters of the North and 
South Forks of the Republican River and of the Arickaree River. 
A compact, in tentative form, covering this subject has already been 
prepared but no such compact can be negotiated until legislative 
authorization is obtained therefor. This office will cooperate with 
Mr. Hinderlider, the Interstate River Commissioner, in preparing 
for the consideration of the 30th General Assembly a bill authoriz- 
ing the appointment by you of a commissioner for the purpose of 
negotiating a compact covering this subject. 

(5) Proposed Arizona Contract. 

I now point out another matter which this office has regarded as 
being of vital importance to the State of Colorado. 

I refer to the proposed contract, heretofore submitted to Hon- 
orable Harold L. Ickes, Secretary of the Interior, by the State of 
Arizona whereby that State sought an agreement with the United 
States Government for the storage and delivery of 2,800,000 acre- 
feet of water from the Boulder Canyon Reservoir. 

6 Biennial Report 

So grossly inequitable did this office regard this proposed con- 
tract from the standpoint of Colorado and the other upper-basin 
States, that ^ve enlisted your aid as Governor in asking permission 
of the Secretary of the Interior for the four upper-basin States to 
file a protest against his execution of such proposed contract, to- 
gether with a brief or briefs in support thereof. 

At your request, such permission "svas granted by the Secretary 
of the Interior; and thereafter the four upper-basin States duly 
filed their joint protest against his execution of said proposed con- 
tract, together with a joint brief in support thereof. In the prep- 
aration of this joint protest and brief, this office was represented by 
Mr. Charles Roach, First Assistant Attorney General, and Mr. 
Shrader P. Howell, Assistant Attorney General, both of whom gave 
to the matter much care and attention. A joint protest and sup- 
porting brief were also filed on behalf of the States of California and 

Thereafter, and again with your cooperation, the Secretary of 
the Interior was induced to grant a hearing of these protests of 
said upper and lower-basin States against said proposed contract, so 
tendered to him for execution by the State of Arizona, on December 
17, 1934. At such hearing the State of Colorado was represented 
by myself as Attorney General and by Mr. Roach, First Assistant 
Attorney General, and Mr. Howell, Assistant Attorney General. 

After hearing the arguments on these protests, and particularly 
the joint protest of the four upper-basin States, the Secretary of the 
Interior held the contract tendered by the State of Arizona to be 
unfair and inequitable and announced that he would not execute 
the same. 

Although Mr. Secretary Ickes denounced the contract tendered 
to him at that time by the State of Arizona as inequitable, neverthe- 
less he strongly suggested that all of the other States in the Colo- 
rado River Basin join in a constructive effort to work out a contract, 
to be executed by him with Arizona, that would satisfy Arizona and 
at the same time would safeguard the interests of such other States. 

The claims of the State of Arizona, which continues to remain 
outside of the Colorado River Compact, in and to the waters of that 
river will continue to be regarded by this office as of very vital con- 
cern to the State of Colorado. 


It was my privilege to attend the recent Conference on Crime, 
called by Honorable Homer S. Cummings, Attorney General of the 
Tnitod States, and held at Washington, D. C, from December 10 
to December 11. last, and 1 returned from it profoun^lly impressed 
with the possibilities afTorded by the device of interstate coin|iacts 
HH a means of Hupi)reHsing crime, of circumventing the activities of 
modern uniursters and criminals, and of enforcing gt'iierally the re- 

Attorney General of Colorado 7 

spective criminal laws and policies of States that may enter into 
such compacts. 

A very definite and direct challenge to each and all of the 
States for cooperation with the United States Government in this 
manner was laid down by the 73rd Congress by its enactment of 
that certain act (Public No. 293, H. R. 7353), approved June 6, 
1934, whereby the Congress has given a blanket consent in advance 
to all agreements or compacts entered into by any two or more 
States ''for cooperative effort and mutual assistance in the preven- 
tion of crime and in the enforcement of their respective criminal 
laws and policies, and to establish such agencies, joint or otherwise, 
as they may deem desirable for making effective such agreements 
or compacts. ' ' 

I recommend to you, therefore, that you propose to the 30th Gen- 
eral Assembly, which will shortly convene, the enactment of a law 
authorizing you, as Governor, to appoint one or more commissioners 
for the purpose of negotiating on behalf of the State of Colorado 
(with due regard to any Constitutional limitations), any agreement 
or compact with any other State or States that may be designed to 
accomplish the wholesome purposes contemplated by the 73rd Con- 
gress ; and if you approve this recommendation I shall be glad per- 
sonally to prepare for introduction into the 30th General Assembly 
that kind of a measure which you may feel will be best calculated to 
obtain these most desirable ends. 


Through this division of the Department of Law there has been 
collected during the period from December 1, 1932, to November 
30, 1934, the sum of $1,691,642.00, which is a very creditable show- 
ing in view of the financial conditions and depreciation in value of 
assets belonging to estates. 

The amount expended by this division for the same period, in- 
cluding salaries and all expenses, was $36,451.85, as follows : 

December 1, 1932, to July 1, 1933, 7 months $14,341.28 

July 1, 1933, to November 30, 1934, 17 months.... 22,110.57 

The sum of $18,247.41 was also collected under the Old Age 
Pension Act. 

There has also been turned over to the State Treasurer the sum 
of $32,921.03 collected from escheat estates. 

The expenses of this division were only 2 per cent of the 
amount collected, and they were lower than for any previous period. 

That number of Treasurer's receipts issued on estates exam- 
ined, being receipts numbered 58209 to 64053, inclusive, show that 
5,845 estates have been handled during this period. 

In January, 1933, it was found by Mr. George Hetherington, 
the incoming Commissioner, that the Inheritance Tax Act of 1927, 

8 Biennial Report 

then in effect, was too restricted in its application and was not 
bringing to the State proper returns from this form of taxation. 
Accordingly, a new and more flexible bill was drawn by ^Ir. Ilether- 
ington, in conjunction with the Attorney General's office, for intro- 
duction into the 29th General Assembly. This bill was introduced 
into the House of Representatives by Representative Closes Smith, 
of Weld County, and was unanimously passed by both the House 
and the Senate. It was approved by you as Governor on May 16, 
1933, since which time it has been in effect as a law. This act of 
1933 has operated to bring into the Treasury of the State of Colo- 
rado more than $20(),()()0.()0 in excess of the taxes that would have 
been payable under the act of 1927. 

Important changes were made in the act of 1933, including the 
removal of the exemption on gifts to foreign charities. The act of 
1927 provided that all gifts to charities should be exempt from tax- 
ation anywhere in the world, but the act of 1933 limits these ex- 
emptions to gifts for charities onl}- when used within this State. 

Notwithstanding rigid curtailment of expenses the collections 
for the first fiscal year ending June 30, 1934, amount to $1,119,675.27. 
In addition there was also collected during this period the sum of 
$10,630.67 for the Old Age Pension Fund. This amount, the larg- 
est ever made in any one year, was materially increased by the 
change in the law with reference to the exemption of gifts to for- 
eign charities. 


In concluding this report, it is only just and proper that I 
express my gratitude to the miMubers of the Attorney General's 
staff who liave worked so faithfully, so zealously and so harmoni- 
ously with me in handling, in a lawyer-like way, the many legal 
(luestions that have been presented to this office during the past two 

We have striven during these past two years, as we shall strive 
during the next two years, to command and to maintain for this 
office the respect an<l confidence of \ho lawyers of Colorado and of 
the courts of ('(►lorado, including, particularly, our Supreme Court, 
in which we are re<|uired to appear in so many cases. 

I acknowledge a debt of gratitude : 

To Xorris C. Hakke, Deputy Attorney General, \'or the capable 
manner in whicli lie lias supervistMl the routine of the office, and 
liaH given o|) in ions and tried eases. 

To Cliarles Koa<'!i. First Assistant Attorney (n'lieral, who is an 
expert on the Constitutional and statutory law of Colorado, and 
who is now, as he for many years lias been, the mainstay of the 
Attorney (tencrars office. 

To Shrader P. Howell, Assistant Attorney General, for the 
highly efficient manner in which he has handled our interstate water 
con t rove rsicH. 

Attorney General of Colorado 9 

To Oliver Dean, Assistant Attorney General, a veteran of this 
office, for the highly capable manner in which he has handled many 
important matters relating to highways and to excise taxation. 

To Richard Conour, Assistant Attorney General, for his highly 
capable services in cases involving public utilities. 

To Pierpont Fuller, Jr., Assistant Attorney General, for his 
brilliant services both as an office lawyer and as a trial lawyer in 
behalf of the State. 

To Morris S. Ginsberg, Assistant Attorney General, who has 
handled the largely increased number of compensation cases in a 
highly expert and efficient manner. 

To Hazel M. Costello, Assistant Attorney General, for her able 
and invaluable services in handling questions relating to the public 

To J. Glenn Donaldson, Assistant Attorney General, for his 
capable and efficient services, in handling highly important matters 
originating in the office of the State Insurance Commissioner and of 
the State Building and Loan Commissioner. 

To Charles Queary (now Director of the Legislative Reference 
Office), and to Walter F. Scherer, Assistant Attorney General, for 
the fair, thorough and capable manner in which they have presented 
criminal cases to the Supreme Court. 

And to George Hetherington, Assistant Attorney General and 
Inheritance Tax Commissioner, and to his deputies, 0. S, Brinker 
and A. M. Morris, for the intelligent, capable and efficient manner 
in which they have enforced, applied and extended the Inheritance 
Tax Law of Colorado. 

Respectfully submitted, 


Attorney General. 

1901 -'OZ •03-V4 05-06 07-08 09- '10 II -'12 13- 'l4 '15-76 '17- 'l8 '19- '20 '21 -'22 •?3-'24 •Z5-'26 '2 7- 'ZS '29-'30 '31-32 33-34 





No. 15. Original. October Term 1927. State of Colm-dm v. State 
of Kansas, et al. Original proceeding to determine rights of 
the parties to water in the Arkansas River. Evidence being 
taken as and when commissioner directs. Pending. 

No. 20. October Term 1930. State of Wyoming v. State of Colo- 
rado. Construction of former Wyoming-Colorado decree to 
enjoin use of waters of Laramie River. Pending. 

No. 137. Colorado Central Power Co. v. Colorado Tax Commission. 
Petition for writ of certiorari denied October 24, 1934. 

No. 138. Colorado Central Power Company v. Colorado Tax Com- 
mission. Petition for writ of certiorari denied October 24, 1934. 

No. 139. Colorado Central Power Company v. Colorado Tax Com- 
mission. Petition for writ of certiorari denied October 24, 1934. 

No. 499. Moffat Tunnel League et al. v. United States Interstate 
Commerce Commission. Appealed from United States District 
Court. Affirmed April 10, 1933. 

No. 19. Original. State of Colorado v. Symes. Mandamus in re 
Henry Dierks. Motion for leave to file petition for mandamus. 
Denied October 17, 1933. 

No Original. October Term 1932. State of Alabama v. 

State of Arizona et al. Suit to enjoin various states from en- 
forcing laws relating to convict-made goods. Motion for leave 
to file complaint denied February 5, 1934. 

No. 588. October Term 1933. M. C. Hinderlider as State Engineer 
et al. V. The La Plata River and Cherry Creek Ditch Company. 
Appeal from judgment of Colorado Supreme Court involving 
rights of appropriators on Interstate Stream. Dismised for 
want of final judgment March 12, 1934. 

12 Biennial Report 

No October Term 1933. State of Arizona v. State of Cali- 
fornia et al. Motion for leave to file Bill to perpetuate testi- 
mony. Denied May 21, 1934. 

No October Term 1933. DUl v. People of the State of Colo- 
rado. Petition for appeal; order allowing appeal. Dismissed 
for want of Federal question May 21, 1934. 

No. 568. Z7. S. Building and Loan Ass'n et al v. McClelland. Peti- 
tion for writ of certiorari. Pending. 


No. 52527. (N. Y.) hi the matter of Kmintze Brothers et al. (bank- 
rupt). Claim of State of Colorado for money on deposit for 
payment of bond interest. Pending. 

No. 7548. (Colorado Bankruptcy) Ref. No. 3171. In the matter 
of J. Fred Rohei'ts & Sons Construction Company. Involving 
road building contract. Money paid into bankruptcy court by 
Highway Department January 26, 1934. 

No. 10022. American Bridge Company v. J. Fred Roberts rfr Sons 
Construction Company et al. Involving road building contract. 
See case No. 7548. 

No. 10051. Great American Indemnity Company v. J. Fred Rob- 
erts. Involving road building contract. See case No. 7548. 
Highway Department relieved of all liability January 26, 1934. 

No. 10266. United States Building and Loan Association et al. v. 
McClelland as State Building and Loan Commisisoncr. Peti- 
tion for injunction and receiver. Dismissed March 12, 1934. 

No. 10286. Murphy and others similarly situated v. United States 
Building and Loan Association and McClelland as State Build- 
ing and Loan Commissimwr. Petition for injunction and re- 
ceiver. Dismissed without prejudice April 25, 1934. 

No Regents of the Ihiiversity of Coloi'ado v. National Surety 

Company. Removed from Denver District Court. Pending. 

No. 103777. School of Mines v. Adams, Receiver of Ruby Naiional 
Bank of Golden, Colorado. Suit to establish preferred claim. 


In re proposed contract of the State of Arizona for storaffe and de- 
livery of walrr in Boiddor Dam. Contract requested by Ari- 
zona denied December l*^ l^-'t 

Attorney General of Colorado 13 


Finance Docket 

9135. Intervention of State of Colorado on rehearing of applica- 
tion of The Colorado and Southern Railway Company and The 
Denver and Rio Grande Western Railroad Company for author- 
ity to abandon the Pitkin Branch of the Colorado and Southern 
Railway Company in Gunnison County, Colorado, operated by 
The Denver & Rio Grande Western Railroad Company. Appli- 
cation granted May 8, 1934, to become effective thirty days after 

9386. Intervention of State of Colorado in application of The Den- 
ver and Rio Grande Western Railroad Company for authority 
to abandon its Lake City Branch in Gunnison and Hinsdale 
' Counties, after authority had been granted. Petition for re- 
hearing filed June 15, 1933, and denied. Abandonment became 
effective October 20, 1933. 

9556. Application of The Denver-Intermountain and Summit Rail- 
way Company for authority to acquire and operate the South 
Park Branch of the Colorado and Southern Railway Company. 
Application denied November 29, 1933. Rehearing denied 
July 2, 1934. This application was heard in conjunction with 
a similar application in Finance Docket No. 9582. 

9582. Application of The Denver, Leadville and Alma Railroad 
Company for authority to acquire and operate the South Park 
Branch of the Colorado and Southern Railway Company. Ap- 
plication denied November 29, 1933. This application was 
heard in conjunction with a similar application in Finance 
Docket No. 9556. 

10105. Application of The Denver and Rio Grande Western Rail- 
road Company for authority to abandon its Pagosa Springs 
Branch in Archuleta County, Colorado. Application granted 
August 10, 1934, abandonment to become effective six months 
after date. Pending on petition for rehearing. 

10439. Application of The Grand River Valley Railroad Company 
for authority to abandon its entire line in Mesa County, Colo- 
rado. Abandonment allowed, effective January 1, 1935. Order 
dated October 18, 1934. 

Ex Parte No. 115. Application of all rail carriers to increase rates 
in all territories. Pending. 

25123 and 25449. The St. Louis Livestock Exchange et al. v. The 
Alton Railroad Company et al. "Sale in transit" case which 
was decided favorably to Colorado livestock interests and **sale 
in transit" privileges retained. 

14 Biennial Report 


Kinance Docket 

12735. Eastenes v. Adams, et al. Error to the District Court, of 
Weld County. Affirmed September 18, 1933. 

12736. Hinderlid'er, et al. v. Everett, et al. Error to the District 
Court of Chaffee County, involving supervision of the upper 
Arkansas River. Reversed and remanded January 23, 1933. 

12796. The La Plaia River amd Cherry Creek Ditch Company v. 
M. C. Ilimlerlider, et al. Error to the District Court of La 
Plata County. Action involving rights of appropriators upon 
interstate stream covered by an interstate compact. Judgment 
reversed July 10, 1933. Appealed to Supreme Court of the 
United States (Oct. Term 1933, No. 588). 

12817. Bardner v. County Commissioners. Error to the District 
Court of Baca County. Suit to recover taxes. Affirmed De- 
cember 27, 1932. 

12920. Trustees State Normal School v. Wightman. Error to the 
District Court of Gunnison County. Judgment awarded to 
plaintiff upon contract of emplovment. Affirmed September 
11, 1933. Settled November 20, 1934. 

12949. Colorado Tax Commission v. Colorado Central Power Com- 
pany. Error to the District Court of Jefferson County. Action 
for refund of taxes. Judgment in favor of plaintiff. Reversed 
February 5, 1934. Appealed to United States Supreme Court. 
No. 137. 

12959. Colorado Tax Commission v. Denver Bible Institute. Error 
to the District Court of Adams County. Action for recovery 
of taxes. Judgment entered in favor of plaintiff. Affirmed 
March 5, 1934. 

12962. Colorado Tax Commission v. Midlatul Terminal Railway 
Company. Error to the District Court of El Paso County. 
Action for refund of taxes. Assessed valuation of railroad re- 
duced. Judgment reversed June 26, 1933. 

12963. Colorado Tax Commission v. Midland Terminal Railumy 
Company. Error to the District Court of Teller County. 
Action for refund of taxes. Assessed valuation of railroad re- 
duced. Judgment reversed Juno 26, 1933. 

12990. Colorado Tax Commission v. Colorado Central Power Com- 
pany. Error to the District Court of Arapahoe County. Con- 
solidated with No. 12949. 

12991. Colorado Tax Commission v. Colorado Central Power Com- 
pany. Error to the District Court of Weld County. Con- 
Bolidated with Case No. 12949. 

Attorney General of Colorado 15 

13017. Kemp et al. as Members of the Board of Co^tnty Commis- 
sioners of Adams County v. Pillar of Fire. Error to the Dis- 
trict Court of Adanis County. Action relating to tax exemp- 
tion. Judgment affirmed December 11, 1933. 

13024. Parry & Jones v. Bourd of Corrections. Error to the Dis- 
trict Court of Pueblo County. Action involving judgment on 
arbitrators award. Judgment set aside. Affirmed December 4, 

13069. In the MaUer of the Petition of the Pacific States Life 
Ins. Compactly et ai. for an order approving the withdrawal of 
securities. Error to the District Court of Denver, which per- 
mitted withdrawal. Reversed November 6, 1933. 

13109. San Luis Power & Water Co. v. Fred Trujillo, as Treasurer 
of the County of Costilla. Error to the District Court of Cos- 
tilla County. Judgment entered in favor of plaintiff for back 
taxes. Affirmed October 16, 1933. 

13121. People v. Sheldon E. Tucker. Attorney General's office is 
taking no part in this case. Affirmed on rehearing, the court 
being equally divided. December 17, 1934. 

13126. People v. Home Oil and Supply Company. Error to the 
District Court of City and County of Denver. Action for col- 
lection of four-cent gasoline tax. Reversed with directions to 
District Court to enter judgment in favor of the State for the 
full amount. May 28, 1934. Judgment satisfied. 

13133. Albert Schwilke v. The People of the State of Colorado. 
Citation for contempt of court for violation of injunction issued 
by District Court of City and County of Denver, enjoining 
Schwilke from operating as a common or private carrier by 
motor vehicle, wherein Schwilke was found guilty of contempt 
and sentenced to serve six months in jail. This was a test case, 
the decision in which would have followed the decision in Bush- 
nell V. The People, No. 13108. By agreement, case remanded 
to District Court where Schwilke pleaded guilty and was fined 
$25.00 and costs. 

13140. Ovid M. Ludlow v. The People of the State of Colorado. 
Injunction granted by District Court of Larimer County to en- 
join alleged operation of motor vehicles for hire. By stipula- 
tion this case followed case of Bushnell v. People, No. 13108. 

13141. Ralph E. Kimble v. The People of the State of Colorado. 
This was a companion case of Bushnell v. People No. 13108, 
and Ludlow v. People, No. 13140, and follows the decisions in 
those cases. Judgment of District Court enjoining the illegal 
operation of motor vehicles for hire. Affirmed January 30, 

16 Biennial Report 

13148. The Denver and Rio Grande Western Railroad Company v. 
Public Utiliti-es Commission, Writ of error to review judgment 
of District Court of City and County of Denver, sustaining 
order of Public Utilities Commission reducing rates on live- 
stock movements within the state. Dismissed at request of 
railroad company. 

13166. People ex rel. Moore v. Lory, et al.. Error to the District 
Court of Larimer County. Suit on teacher's contract. Judg- 
ment affirmed April 9, 1934. 

13178. People v. Montgomery. Error to the District Court of 
Boulder County. Action to restrain illegal operation of motor 
vehicle. Injunction denied. Affirmed January 30, 1933. 

13180. Da/nks et al. as Board of Commissioners of the Solders d: 
Sailors Home v. Fannie McMayiis Hermann. Error to the 
County Court of Rio Grande County. Action to set aside order 
of final settlement and distribution in the matter of the estate 
of William McManis, deceased. Judgment affirmed March 26, 

13207. Public UtiJities Comvmsion et al. v. Town of Eric et al. 
An order of the Public Utilities Commission permitting the dis- 
continuance of a railroad station at Erie was set aside by the 
District Court of Boulder County. Judgment reversed Janu- 
ary 7, 1933. Rehearing denied January 30, 1933. 

13235. People ex rel. Park Reservoir Co. v. Hinderlider, et al. Case 
involving water appropriations. Error to the District Court of 
Delta County. Pending. 

13266. L. M. Maitland v. People. Prosecution for killing deer in 
game refuge. Affirmed June 5, 1933. 

13283. Petition of Irving PhilUps for tvrit of habeas' corpus. Error 
to the District Court of Fremont County which held that Juve- 
nile Courts have jurisdiction to try persons for felonies. Re- 
versed August If), 1933. 

13328. People ex rel. Karl Weitengel, District Attorney, vs. Hon, 
(ieorge F. Dunklee, Judge of DL^triit Court. Mandamus. 
(Habitual Criminal Act) Attorney rJeneral's office dcclinotl to 
take part. 

People ex rel. Shanr r. District Court of El I^u.^o (\ninty. 
Suit for writ of prohibition. Denied July 22, 1933. 

13358. Rivcrsitle Reservoir auil Land Co. v. Hinderlider et al. Case 
involving water rights. Error to the District Court '»*" W.«]d 
County. Pending. 

13359. Bijmi Irrigation District v. Himlerlider et al. Case in- 

vnlvliur \v .t.-r rights. Pending. 

Attorney General of Colorado 17 

13361. Bowles v. Miller et al., constituting State Board of Land 
Commissioners. Construction of a reservation in a parcel of 

state land. Error to the District Court of County. 


13367. The People of the State of Colorado, ex rel. The Industrial 
Commission of Colorado v. Aladdin Theatre Corp. et al. Error 
to the District Court of City and County of Denver. Pending. 

13368. The People of the State of Colorado, ex rel. The Industrial 
Commission v. Amusement Enterprises, Inc. et al. Error to the 
District Court of the City and County of Denver. Pending. 

13380. Walker v. Bedford, et al. Injunction to restrain collection 
of special Motor Vehicle Tax. (U. R. Tax Case) Error to Dis- 
trict Court of Denver. Reversed with direction to grant in- 
junction prayed for October 18, 1933. Rehearing denied No- 
vember 1, 1933. 

13382. Consolidated Motor Freight Inc. v. Bedford, et al. (U. R. 
Tax Case) Argued and submitted with case No. 13380. Re- 
versed October 18, 1933. Rehearing denied November 1, 1933. 

13433. In re Senate Resolution No. 2. Original Proceeding. Re- 
quest for opinion on constitutionality of proposed issue of cer- 
tificates of indebtedness for highway construction. Declared 
unconstitutional December 26, 1933. 

13440. In the matter of the Estate of John Kwatkowski, Deceased. 
The State of Colorado v. John Reindl, as Executor of the Last 
Will and Testament of John Kwatkowski, Deceased, and Mary 
E. Canfield. Judgment reversed with directions, February 5, 

13451. United States Building & Loan Association et al. vs. Mc- 
Clelland as State Commissioner of Buildnig and Loan Associa- 
tions. Injunction. Error to the District Court of Denver 
which refused the injunction. Affirmed July 9, 1934. Re- 
hearing denied September 10, 1934. 

13463. In re Interrogatories of Senate. Request for opinion on 
constitutionality of H. B. No. 45 (2nd Ex. Sess.) Declared un- 
constitutional March 12, 1934. 

13481. The Colorado Utilities Coi-poration v. The Public Utilities 
Commission. Action to review an order of the Public Utilities 
Commission. Error to the District Court of the City and 
County of Denver. Pending. 

13487. Godman v. Prosser as Attm-ney General et al. Petition for 
temporary injunction pending appeal from District Court of 
Denver. Highway condemnation. Injunction denied March 
8, 1934. Writ of error denied August 2, 1934. 

18 Biennial. Report 

13546. Scanland, Klatt i& Walker v. Board of County Commission- 
ers of Jeffersoii County. Condemnation. Error to the District 
Court of Jefferson County. Pending. 

13553. Armstrong as Secretary of State v. Mitten and Wolcott. 
Petition for declaratory judgment on constitutionality of reap- 
portionment statute. Error to District Court of Denver which 
held Act unconstitutional. Affirmed July 2, 1934. 

13555. Highland Utilities Company v. The Public Utilities Catn- 
mission. Action to review an order of the Public Utilities Com- 
mission requiring the continuance of service in town of Kit 
Carson. Error to the District Court of the City and County of 
Denver. Pending. 

13576. People ex rel. Board of County Commissioners of Boulder 
County V. Burger, County Clerk, Massachusetts Bo7idin^ and 
Ins\iranee Company and Homer F. Bedford, State Treasurer. 
Suit on bond for motor vehicle license fees lost in bank which 
failed. Dismissed by stipulation October 5, 1934. 

13585. James Dikemi v. People ex rel. Maxine Cassidente, a minor. 
Error to Juvenile Court of Denver which entered order re- 
quiring defendant to support illegitimate child. Affirmed Oc- 
tober 15, 1934. 

13596. State v. Tolhert et al. Injunction to restrain illegal use of 
motor fuel. Error to the District Court of Baca County. 

13608. People ex rel. Haraway, Land and Dairies v. Armstrong as 
Secretary of State et al. Suit to invalidate petition for initi- 
ated law (Chain Store Tax). Error to District Court of Den- 
ver which upheld petition. Affirmed September, 1934. 

13611. Johnson et al. v. Kelly. Civil service case. Mandamus to 
recover state office. Error to the District Court of Denver 
which granted the writ as prayed for. Pending. 

Horton et al. v. The Fmintain Vdllrjf Sch/)ol. Tax exemp 
lion case. Pending. 

Attorney General of Colorado 


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Biennial Report 


o«^ •«iawwwi««w«ee^ mom 


Attorney General of Colorado 21 


No. Title of Cause Judgment of Lower Court Status 

13233 The Rocky Mountain Fuel Co. et 
al. V. The Ind. Com. and Darvin 

Wilson Award Affirmed Judgment Affirmed 

May 13, 1933 

13234 Colo Fuel & Iron Co. v. Ind. 

Com. and Vasquez Award Affirmed Judgnnent Reversed 

August 7, 1933 

13236 London Guarantee & Accident Co. 
Ltd. et al. v. Clyde Sauer and 

Ind. Com. Award Affirmed Judgment Affirmed 

May 15. 1933 

13249 C. M. Roper v. Ind. Com. et al. . .Award Affirmed Judgment Affirmed 

September 5, 1933 

13276 Ind. Com. and Frank X. Meile v. 

Cooperative Oil Co Award Set Aside. . . .Judgment Reversed 

With Directions 
' August 7. 1933 

13291 Clayton Coal Co. et al. v. Ind. 

Com. and Mary Tsikiris Award Affirmed Judgment Affirmed 

July 3, 1933 

13302 Richard O. Lockard v. Ind. Com. 

et al Award Affirmed Judgment Affirmed 

August 2. 1933 

13304 William Winteroth v. Ind. Com. 

et aL Award Affirmed Judgment Affirmed 

i May 29, 1933 

13312 Ind. Com. et al. v. Margaret W. 

Swanson Award Set Aside. . . .Judgment Affirmed 

October 9, 1933 

13342 Emily Rogers v. Ind. Com. et al. .Award Affirmed Judgment Affirmed 

December 11, 1933 

13343 F. R. Poole v. Ind. Com. et al... Award Affirmed Judgment Affirmed 

January 8, 1934 

13353 Ind. Com. et al. v. Charles F. 

Moynihan Award Set Aside. . . .Judgment Affirmed 

January 22, 1934 

13399 Central Surety and Ins. Co. et al. 

V. Ind. Com. .and Lard Award Affirmed Judgment Reversed 

and Cause Remanded 
February 13. 1934 

13401 Clayton Coal Co et al. v. Mike 

Zak and Ind. Com Award Affirmed Judgment Affirmed 

December 22. 1933 

13404 John Reynolds and Ind. Com. v. 

Fraker Coal Co. et al Award Set Aside. . . .Judgment Reversed 

With Directions 
December 18, 1933 

13408 Ind. Com. and Susman v. State 

Comp. Ins. Fund et al Award Set Aside Judgment Affirmed 

January 22, 1934 

13409 Post Printing & Publishing Co. 
et al. v. Russell Erickson and 

Ind. Com Aw'ard Affirmed . . . .Judgment Reversed 

With Directions 
February 26. 1933 

22 Biennial Report 

Na Title of Cause Judgment of Lower Court Status 

13410 The Empire Zinc Co. v. Ind. Com. 

and Vasquez Award Affirmed Judgn^ient Affirmed 

December 22. 1933 

13418 Carl H. McKune v. Ind. Com. et 

al Award Set Aside .... Judgment Reversed 

and Cause Remanded 
March 9. 1934 

13424 Wm. L. Sherratt and Ind. Com. 

V. Rocky Mtn. Fuel Co. et al Award Set Aside. .. .Judgment Affirmed 

January 29. 1984 

13425 Hayden Bros. Coal Co. et al. v. 

Ind. Com. and Uzenskl Award Affirmed Judgrment Affirmed 

January 29. 1934 

13427 Boulder Valley Coal Co. et al. v. 

Paul Shipka and Ind. Com Award Affirmed Judgment Affirmed 

February 26, 1933 

13441 Elizabeth Peer v. Ind. Com. et al. Award Affirmed Judgment Atflrmed 

February 5. 1934 

13442 The DriscoU Construction Co. et 

al. V. Ind. Com. & W. A. Erker. .Award Affirmed Judgment Affirmed 

April 2. 1934 

13457 The Rocky Mtn. Fuel Co. et al. 

V. Stanley Kruzic and Ind. Com. .Award Affirmed Judgment Reversed 

February 26. 1933 

13458 Theophlle Jabot v. Ind. Co. et al. Award Affirmed Judgment Affinned 

March 5. 19S4 

13466 Ind. Com. et al. v. M. Radovich. Award Set Aside. .. .Judgment Reversed 

With Directions 
March 5. 1934 

13469 David Allan et al. v. Ind. Com. 

and Gettler Award Affirmed Judgment Affirmed 

March 19. 1984 

13472 Ind. Com. et al. v. Paul H. 

LIndvay Award Set Aside. . . .Judgment Reversed 

With Directions 
March 19. 1934 

1.1521 London Guarantee & Accident Co. 

et al. V. Ind. Com and Rowland. AWard Affirmed. .. .Judnmont Reversed 

With Directions 
July 16. 1934 

ISfiUH MT'lain Chevrol.t Co. et nl. v. 

Ind. Com. and Botloman Award Set Aside. . . .Judgment Affirmed 

June 18. 193 4 

13541 The State r<»nip. InH. Fund ft 
al. v InduHtrlal Com. and M:\k- 

Sarty ... \\v;iiii Affirmed Jii(lKn;«>i)t .Affirmnl 

July 16. 1934 

11547 Ind. Com. and Meininjrec v. Wm. 

L. MontKomnrv Award Sol Aside. . . . Ju«lgmcnt ReverBed 

With Dlrecttona 
Soptomber 17. 1934 

1S569 Clayton < ...n . ,,, rt iil. v. Iiul. 

Com. and D« Snntia Award Affirmed Ju«lKmi>nt Affirmed 

July 13. 1934 

18578 AuKum Frank v. Ind. Com. and 

liiurk DiiirniiM.i Kuel Ca Awur«> AfHrin..! Pending 

Attorney General of Colorado 23 

No. Title of Cause Judgment of Lower Court Status 

13592 Marie E. Clarke v. Ind. Com. and 

Mary Clarke et al Award Affirmed Judgment Affirmed 

October 1. 1934 

13616 John B. Pollard v. Ind. Com. et 

al Award Affirmed Judgment Affirmed 

November 19, 1934 

13619 The Rocky Mtn. Fuel Co. et al. 

V. Ind. Com. & Arthur Cannivez. Award Affirmed Pending 

13625 London Guarantee and Accident 
Co. et al. V. Ind. Com. and Fay 
McCoy Award Affirmed Pending 

13635 Gus Kosmos v. Ind. Com. and 

The Colorado Fuel & Iron Co. . .Award Affirmed. .Motion to Dismiss Writ 

of Error Granted 

24 Biennial Report 

Adams County 


3431. Board of County Commissioners & State Highway Depart- 
ment V. Poniponio et d. Condemnation. Pending. 

3467. State of Colorado ty. Chase et aJ. Application for receiver. 
Land Board case. Receiver appointed September 29, 1934. 

Arapahoe County 

Board of County Commissioners v. D. E. Trogler, Public 

Trustee, et al. Condemnation proceeding. Pending. 

2809. People v. Dunn, et al. Action on bond in matter of escheat 
estate of Peter Franzen. Judgment for defendant October 20, 
1934. To be appealed. 

2S10. People v. Caj'turright, et aJ. Action on bond in matter of 
escheat estate of Peter Franzen. Judgment for defendant Oc- 
tober 29, 1934. To be appealed. 

In re Estate of Mary Boyle, Deceased. Appeal from County 

Court. Escheat case. Pending. 

2797. Colorado Central Poiver Co. r. Board of County Commis- 
sioners of Arapahoe County. This case held pending outcome 
of appeal to Supreme Court. Dismissed. 

4051. Cline et ah v. Haruion, et al. Tax exemption case involving 
property belonging to Order of the Fastern Star. Pending. 

Archuleta County 

People ex rel. State Hiijhumy Department v. Craves. Prose- 
cution for obtaining money by false pretenses. This ofHco has 
been asked to assist the District Attnrii«\v. 

Boulder County 

9432. Pfopfe ex rel. Htmrd of (^ouuty ('(nnnnssitpners of BouJder 
Cerunt\f r. Burger, (Umnty Clerk, Massaehuseifs Bonding (C 
Insurance Corporation and Homer V. Bedford, State Treas- 
urer. Suit on bond for motor vehicle license fees lost in bank 
which failed. Judgment for defendant on demurrer March 
17, 1931. Appealed to Supremo Court. Case No. 13576. Dis- 

Baca County 

1505. State v. Tolhert ct at. Injunction to restrain importation of 
motor fuel without license. Judgment for defendants on de- 
TinirT.r \|M><'.»l''d *'» S^nnriin.' ('ourt, Casc No. 13596. 

Attorney General of Colorado 25 

Number Chaffee County 

3147. Reorganized Catlin Consolidated Caned Co. v. Sunny Side 
Ditch, Hinderlider et ail. Action to enjoin use of water. Hin- 
derlider nominal defendant. No action to be taken by this 

office. Pending. 

Clear Creek County 

..,'. E. M. Patrick v. Board of County Commissioners. Action 

to recover taxes. Pending. 

8851. State Highway Department v. Millard Oil Co. Condemna- 
tion proceeding for right of way. Judgment for petitioners. 

8871. Radium Hot Springs v. W. E. Walthers, Treasurer of Clear 
Creek County et al. Tax case. Taken under advisement Octo- 
ber 27, 1934." Pending. 

8906. Board of County Commissioners of Clear Creek Co^mty 
and State Highway Department v. Red Elephant Mining Com- 
pany. Condemnation for highway. Judgment on Commis- 
sioner's findings March 31, 1934. Pending. 

Delta County 

People ex rel. Park Reservoir v. Hinderlider, et al. Man- 
damus action relating to use of water. Decree entered in 
favor of defendants December, 1932. Writ of error December 
22, 1933, No. 13235. 

Denver County 

People ex rel. Puehlo-San Luis YaJIey Transportation Co. 

et ai. V. Armstrong. Mandamus action to enjoin Secretary of 
State from collecting penalty for non-payment of certain cor- 
poration fees. Pending. 

People V. Porter. Action by surety companj^ to recover 

money paid under bond, for taxes. This office has no further 
interest in case. Judgment for plaintiff. 

31408. In the Matter of the Petition of Orangel Helton for a Writ 
of Habeas Corpus. Granted December 29, 1932. 

31457. In the matter of Petition of Fred B. Slender for Habeas 
Corptvs Writ. Involving jurisdiction of Juvenile Court. Venue 
changed to Fremont Countj^ 

31558. People v. Bennight. Attorney General not directly in- 
terested. Gave rise to Supreme Court case upon question of 
interpretation of Habitual Criminal Act, see People ex rel. 
Wettengel v. Dunklee No. 13328. 

26 Biennial Report 


31714. In the Matter of the Petition of Fred B. Slemler far a Writ 
of Habeas Corpus. Granted August 31, 1933. 

110717. Sam Bernstein v. State of Colorado, et al. Suit for money. 

A-1359. Murphy v. Federal Building cC* Loan Association, et al. 
Money demand. Pending. 

A-2719. People ex rel. Ireland v. Iliff, et al. Action for appoint- 
ment of trustees, and accounting in estate of Wm. Barth. 

A-3047. W. E. Hearon et al. v. Security Savings and Loan As- 
sociation and Eli Gross as State Buildin-g and Loan Commis- 
sioner. Application for receivership. Granted. Pending. 

A-3672. Regents of University of Colorado ik Colonial Drug and 
Sales Comjmny. Action to recover money paid for alcohol for 
the medical department, which was not delivered. Pending. 

A-3783. Morrato, et al. v. Civil Service Commission, et al. Action 
to enjoin Flebbe from exercising the powers of Deputy Build 
ing and Loan Commissioner. Dismissed October 12, 1934. 

A-3963. People v. Ruyhal, et al. Action on bond to collect land 
rental. Settled. 

A-4623. Carl Schwab v. Public Utilities Commies-ion. Writ of 
certiorari to review an order of the Commission. Dismissed 
after decision in Bushnell v. People, No. 13108. 

A-4987. People v. Nesbit & Hay ward. Partners. Action to re- 
cover gas tax. Judgment by default September 10, 1934. 

A -5009. Colorado Seminary v. Denver, et al. Action to enjoin 
collection of taxes. Injunction granted as to part of tax March. 
1933. Appealed to Supreme Court. 

Chalmers v. Board of Medical Examiners. Suit to review 
action of Board of Medical Examiners in revoking license. 

People ex rel. Morrato v. Fred \V. Fkbbe. Action to test 

the right of Flebbe to hold the office of Deputy Building and 
Loan Commissioner. Flebbe failed to pass examination. Dis- 

A-5487. Alvin L. Mu^tser v. Public UtPities Commission. Writ 
of certiorari to review an order of the Comniis.sioii. Dismissed 
after decision in Bushnell v. People. No. 1310^. 

Attorney General of Colorado 27 


A-5530. Lillicm Freeman v. Charles Eldridge, et al. Suit for 
damages- Pending. 

J. Graham Orr, Jr. v. Longwortli, School District No. 1 

et al. Disclaimer of State filed February 28, 1933. Pending. 

A-5894. E, J. Yetter et al. as Board, of Directors of the Ramoth- 
GUead Home v. The Ramoth-Gilead Home, Paul Prosser as 
Attorney General, et al. Application for leave to file amend- 
ment to Articles of Incorporation. Dismissed March 6, 1933. 

A-6445. The People ex rel. Public Utilities Commission v. Long- 
horn Stages and A. E. Gasnell. Action for injunction to en- 
join transportation of passengers and express interstate with- 
out authority. Defendants ceased operations and action was 
not pressed. Dismissed October 12, 1934. 

A-6493. In the Matter of the Application of the Indiistrial Com- 
mission of Colorado for the Issuance of a Citation against 
Jamies Walsh. Petition for citation directing James Walsh 
to show cause why he should not be ordered to comply with 
order of Industrial Commission. James Walsh complies with 
Commission's order. Cause dismissed. 

A-6535. The General Motors Acceptance Corporation v. Worth 
Allen, et at. Action to enjoin Commission from selling a motor 
truck for delinquent highway compensation taxes, upon which 
the company held a mortgage. Judgment for company and 
injunction issued. 

A-6598. Colorado Uiilities Corporation v. The Public Utilities 
Commission et at. Writ of certiorari to review an order of the 
Commission dismissing a complaint filed before the Commis- 
sion by Colorado Utilities Corporation against Moffat Coal Co. 
On review of record made by Commission the order was sus- 
tained. Pending in Supreme Court, No. 13481. 

A-6657. The Industrial Commission of Colorado v. Grant Shields 
and National Surety Cmnpany. Action to recover money due 
State Compensation Insurance Fund for premium workmen's 
compensation insurance policy. Default judgment taken 
against defendant Shields. Action pending against defend- 
ant, National Surety Company. 

A-6718. Industrial. Insurance Co. v. Cochrane, Commissioner of 
Insurance. Petition for order to withdraw securities. Order 
entered May 24, 1933. 

A-6876. The People of the State of Colorado ex rel. The Indus- 
trial Commission of Colorado v. Aladdin Theatres, Corp. et aJ-. 
Petition for mandatory writ. Writ issued. Petition dismissed 
and writ dissolved on defendants' motion. Appealed to Su- 
preme Court. 

28 Biennial Report 


A-6879. The People of the State of Colorado, ex rel. The Jndva- 
trial Commi<tsion of Colorado v. Amy seme 7\t Enterprif^cR Inc. 
et ill. Potition for mandatory writ. Writ issued. Petition 
dismissed and writ dissolved on defendants' motion. Appealed 
to Supreme Court. 

A-6880. The People of the State of Colorado, ex rel The h\dns- 
trial Comvn'^fiinv of Colorado v. Colorado Consolidated The- 
atres Corp. et al. Petition for mandatory writ. Writ issued. 
Theatres formerly operated by defendant corporation were 
taken over by defendants in Cause No. A-6876. Cause to be 
dismissed on plaintiffs* motion. 

A -701 8. McKee rf- Cline v. Stevens et al. as mpmherfi of State 
Board of Stork hispection Commissioners. Suit for money 
had and received from sale of estrays. Dismissed with prej- 
udice upon settlement June 15, 1934. 

A-709.'^. State v. Philip P. Zinn et ah, doinq business as The West 
Denver Coed & Od Company. Money demand. Gas tax case. 
Pen din ST. 

A-7175. People ex rel. Ku'ikidis v. Johnson et al. Civil service 
case. Mandamus to recover state office. Judgment for re- 
spondents, writ denied January 11, 1984. 

Ph. Zang Brrwinr; Co. et al. v. Phillips A. Zanrj rt al. and 

Charles Annstroncj as Secretarif of State. Suit for injunction 
and damages. Attorney General takinpr no part. 

A-7336. Highland Ptdities Corp. v. Pnhlir rtdifies Commission 
et al. Writ of certiorari to review an order of the Commis- 
sion restraininp: utility company from nbandoninc: service in 
town of Kit Carson. On review of Commission's record, the 
order was sustained. Pendinp: in Supreme Court, No. 18555. 

A-7447. People ex rel. Mmi v. Johiison et al. Civil Service c^se. 
Mandamus fo r'lM'ovrr stjitc ofTlco. Writ irrjmtcd .rMininrv 9, 

A-7633. Walkiv r. Ihdfnrd et al. {V. U. Tax case.) Applica- 
tion for writ of injunction to restrain collection of special mo- 
tor vehicle ta.x. Jndjrmcnt for defendants September 1, 1933. 
Appealed. Case No. 13380. 

A-7650. ^funro v. Bidford et al. {V. Tl. Tax ea.«?e.) Consolidated 
with \o. A-7633. Judprmcnt for defendants September 1, 1933. 
Appealed. Case No. 13382. 

A-7736. People ex rel. Hedlnnd Abstract Company v. Hubbard 
et al. as members of Abstra4^ters Board of Kxamiticrs. Man- 
damn^ f»ir rKciisr I'cremptory writ issued Xovcmlx r 1 t }^X], 

Attorney General op Colorado 29 


A-7754. The Weicker Tramsfer and Storage Companfiy v. The Pub- 
lic Utilities Cam mission et al. Writ of certiorari to review an 
order of the Commission requirinj^ the Weicker Company to 
cease and desist from charging certain shipper's rates less 
than those prescribed by the company's tariffs on file with 
the Commission. Pending. 

A-7940. State v. Denver Union Oil Company. Gas tax case. Tax 
paid. Case dismissed, 1934. 

A-8683. United States Bxuilding & Loan Associations et al. v. Mc- 
Clelland as State Conimissianer of Building and Loan Asso- 
ciations. Application for writ of injunction. Judgment for 
defendant on demurrer December 30, 1933. Appealed to Su- 
preme Court, Case No. 13451. 

A-8741. People ex rel. McCleU^ind as State Commissioner of Build- 
ing Associations v. Leach et al-., employes and officers of The 
United States Building & Loan Association et al. Suit for 
injunction. Dismissed without prejudice January 16, 1934. 

A-8808. State v. Denver Union Oil Company et al. Suit for gas 
tax. Judgment for plaintiff September 27, 1934. Appeal to 
be taken. 

A-8984. Godman v. Prosser as Attorney General et al. Injunction 
to restrain condemnation for highway. Dismissed February 
19, 1934. 

A-9002. Eiss and Company, Inc. v. The Puhlic Utilities Commis- 
sion et al. Writ of certiorari to review an order of the Com- 
mission holding that Riss and Company, Inc., was a motor 
vehicle common carrier and not a mere freight broker. Writ 

A-9273. Mitten and Wolcott v. Armstrong as Secretary of State. 
Suit for declaratory judgment in re reapportionment act. De- 
clared unconstitutional May 24, 1934. Appealed to Supreme 
Court, Case No. 13553. 

A-9305. United States Building and Loan v. United Securities 
Corp. Suit to set aside conveyance and recover assets. Dis- 
missed June 2, 1934. 

A-9323. Collingumod v. State Board of Medical Examiners. Man- 
damus to compel issuance of license. Pending. 

A-9724. Tolland Company et al. v. The Puhlic UtiUties Commis- 
sion. Writ of certiorari to review an order of the Com- 
mission authorizing the Denver and Salt Lake R. Co. to aban- 
don its station at Tolland, Colorado. Pending. 

30 Biennial Report 


A-9750. People ex rcl. Williams and Beck v. Civil Service Com- 
mission of the State of Colorado and Homer F. Bedford. ^Ian- 
damns to recover state office. Motion for non-suit granted 
June 29, 1934. 

A-9859. People ex rel. Kelly v. Johnson^ Governor, et al. Civil 
Service case. Mandamus to recover state office. Writ issued. 
Appealed to Supreme Court. 

A-9940. William Yernon et al. v. The Parific States Life Insur- 
ance Company, Jackson Cochrane as Commissioner of Insur- 
ance et al. For injunction and construction of statute. Partial 
injunction granted, interim decree entered December 10, 1934. 

A-10394. Agnes Memorial Sanatorium v. Phipps and Prosser as 
Attorney General. Suit for construction of charitable trust. 
Order entered according to prayer of complaint. 

A-10431. People v. Swanson, Helgesrn and Munson. Suit on l>ond 
for grazing lease. Pending. 

A-10525. The Home Gas and Electric Company v. The Pnhli-c 
Utilities Com miss-ion. Writ of certiorari to review an order 
of the Commission reducing electric light and pow«^r raters in 
City of Greeley and nearby towns. Pending. 

A-10537. People ex rel. Ilaraway, Doud and Davis v. Armstrong 
as Secretary of State et al. Suit to invalidate petition for in- 
itiated act. Petition upheld. Case dismissed Septend)er 10, 
1934. Appealed to Supreme Court, Case No. 13608. 

A-10822. Leo L. Sjy-ars et al. v. The Public Vtiliti£s Commiss-um. 
Writ of certiorari to review an order of the Commission dis- 
missing complaint against rates of Pul)lic Service Company 
for v/ant of jurisdiction. JudL'meiil sustaining order of Com- 

A-10834 Regents of the University of Colnrndo v. Sational Surety 
Carp. Removed to United States Oi^tricf Court (^ctob.T 'MV 

Douglas County 

22425. V. K. Hyde v. T^mm of Castle h*ock. Suit on judgment 
bondv P.tuliiif in Supreme Court. 

Eagle County 
948. Tourn of (lypsum and State H'ujhuHiy Department v. Mosher 

et fll. ii.ii Pfiidiii'''. 

Attorney General of Colorado 31 

Number Elbert Couiity 

Board of Commissioners v. Heald, et al. Condemnation pro- 
ceeding. Pending. 

819. Board of Cminty Commissioners and State Highway Depart- 
ment V. lieaild et al. Condemnation. Pending. 

Board of Cmmty Commissimiers and State Hightvay De- 
partment V. Bloniquist et al. Condemnation. Pending. 

Board of County Commissioners and State Highway De- 
partment V. The Porter Thompson Company et al. Condemna- 
tion. Pending. 

930. The People ex rel. The Public Utilities Commission v. A. B. 
Lemley and N. G. Ruth. Action for injunction to enjoin un- 
lawful operation as motor vehicle carriers. Pending. 

El Paso County 

18429. Phi Gamma Delta v. Albert H. Horton, as Treasurer. Suit 
to enjoin collection of taxes on fraternity house. Pending. 

18670. Midland Terminal By. Co. v. Colorado Tax Commission. 
Action to recover taxes. Pending. 

18854. Fountain Valley School v. Horton, et al. Action to enjoin 
the assessment and collection of taxes. Injunction granted as 
to part of properly January 8, 1934; appealed to Supreme 

18874. People ex rel v. Dollar Building & Loan Association. 
Action to place company in receivership. Receiver appointed. 

19008. Weicker Transportation Company, A. J. Borck and U. S. 
Bead v. Public Uiilities Commission et al. Writ of certiorari 
to review an order of the Commission concerning certain joint 
rates made effective by petitioners. Dismissed March 8, 1933. 

18902. People ex rel. v. City Savings Building and Loan Asso- 
ciation. Application to place company in receivership. Re- 
ceiver appointed. Pending. 

18914. People ex rel. v. Home Savings Building (§ Loan Associa- 
tion. Application to have receiver appointed for company. 
Receiver appointed. Pending. 

19125. Midland Terminal By. Co. v. Colorado Tax Confimission. 

19395. Colorado Title and Trust Company v. Grant McFerson as 
State Bank Commissioner. Action for declaratory judgment. 
Judgment for plaintiff, August 19, 1933. 

32 Biennial. Report 


19551. Midland Terminal Ry. Co. v. Coloj'odo Tax Commiss^ion. 

19645. May Engelhrecht v. James McCoy, Administrator and 
People of the State of Colorado. Action for specific perform- 
ance of contract to make a will. Pending. 

19612. City of Colorado Springs v. Joe Pallas and Patil Prosser 
as Attorney General. Petition for declaratory judgment. 
Judgment for defendant on demurrer, 1934. 

19852. Colorado Title t& Tnist Company v. Myers et al. Suit for 
appointment of successor trustee. Order entered according 
to prayer of petition. 

Fremont County 

Industnal Commission v. Tony SantareUe. Action to re- 
cover penalty. Order of Commission complied with. Case 

Petition of Fred B. Slender for Writ of Habeas Corpus. 

Involving jurisdiction of Juvenile Court. Venue changed from 
Denver Countv. Case No. 31457. Dismissed February 20, 

People ex rel. P. U. C. v. Kaufman et al. Action to enjoin 

23 coal truckers from operating without proper authority. 
Pending. Piled December 20, 1934. 

Garfield County 

2771. Standard Hhide Cmnpany v. Cmmty Commissioners and 
State Tax Commission. Action for refund of taxes. Pending. 

Board of Trustees of the Tonm of Rifle and th£ State Jligh- 

way Department v. Dnnhmn. Condemnation proceedings. 

3019. The City of Glenwood Springs v. The Public Utilities Com^ 
mis.<ion, the Glemroofl Light and Pouffr Company, T7iterrener. 
Writ of certiorari to review an order reducing electric light 
and power rates in City of fllenwood Springs. Colorado. On 
review, court further reduced valuation found by Commis- 
sion. Now pending in Supreme Court on writ of error. 

Grand County 

State Highway Department and Board of County Commis- 

tianert v. Thompson et al. Condemnation for highway. Pend- 

Attorney General of Colorado 33 

Number Huerfaiio County 

2184. J. G. Tompkins v. State Highway Department ct al. Suit 
for damages for land taken for highway construction. Dis- 
missed with prejudice by stipulation March 30, 1933. 

Jefferson County 

3100. Staie Land Board v. Orr, et al. Unlawful detainer. Pend- 
ing outcome of Case No. 3127. 

3127. People v. Board of County Commissioners. Action for re- 
survey of lajid. Pending. 

3659. Jewish Consumptive Relief Society v. Kaenig as County 
Treasurer et al. Tax exemption case. Pending. 

Kit Carson County 

2756. People v. Nelson et al. Action to establish boundaries of 
Sec. 36, T. 10 S., R. 42 W. Decree entered in favor of plain- 
tiff March 7, 1933. 

Lord V. Tail personally and as State Highway Engineer. 

Injunction. Pending. 

Kiowa County 

State V. Aldrich et al. Suit for injunction. Gas tax case. 

Permanent injunction granted October 9, 1933. 

Lake County 

6430. City of Leadville v. Public Utilities Commission et al. Writ 
of certiorari to review an order of Public Utilities Commission. 

La Plata County 

Lynch v. State Board of Cosmetology. Action for license. 


Larimer County 

6586. The People of the State of Colorado v. Ralph E. Kimble. 
Citation for contempt of court for violation of injunction issued 
by District Court of Larimer County prohibiting Kimble from 
engaging in the business of a private carrier by motor vehicle 
without first having obtained a permit from the Public Utilities 
Commission. Kimble found guilty of contempt and fined. 

7081. The Tolliver- Kinney Mercantile Co. v. The Public Utilities 
Commission. Action in replevin to recover a truck distrained 
by the Commission for delinquent highAvay compensation taxes. 
Taxc? paid and action dismissed. 

34 Biennial Report 

Number Las Aiiimas Comity 

People tK Murphy C. Barrark, doing hu^inesa as Southern 

Motor Companji in Trinidad, Colorado. Injiinction suit under 
NIRA Automobile Code. Injunction denied September 1. 1934. 

Lincoln County 

Kistler v. Thompson and' Stair Board of Land Commission- 
ers. Suit to compel performance of contract. Pending. 

Logan County 

6111. People V. F. A. Mvrl-e, doing hu.finess as Mnrke Oil Com- 
pany. Money demand for gas tax. Case dismlssod upon pay- 
ment of tax and penalty May 8, 1933. 

6112. People v. E. E. Collier, doing hnsin<ss us CoVirr Oil Co. 
et al. Money demand for gas tax. Dismissed ^lay 8, 1933. 

6198. Sweet v. Henning, Treasurer of the Tmim of Peetz. Man- 
damns to force payment of municipal bonds. State Board of 
Ajrricnlture interested. State's claim allow^l January 18, 

Mesa County 

7. People V. Earle Shaw, doing huffincss as Shaw Motors Inv. in 
Grand Junetion. Injunction to restrain violation of NIRA 
Automobile Code. Pending. 

Moflfat County 

. People V. M. E. Mc?f(ihon as County Clerk of Moffat County 
and The United States Fidelity and Gvaranfif Company. Suit 
to recover motor vehicle license fees. Judfjrment for plaintiff. 
Satisfied July 3, 1934. 

Montrose County 

In re Estate of John Ktcatkowski, deceased. Escheat case. 
Court lield a joint tenancy created and no part of estate es- 
cheated. Revers(»d by Supreme Court Fcl)rnary 3. 1934 (Case 
i\o. 13,410) which ordered lower court to pay half of estate to 
escheat fund upon final settlement. Pending. 

7. People V. Vincent E. Holland, doing business as Holland 
Bros, (iarage. Injunction to restrain violation of NIRA Auto- 
mobile Code. Pending. 

Pitkin County 

2612. .Aif^yen State Bank v. Board of County ^Commissioners and 
'• 7 as Counhf Treasurer. Motion of Colorado Tax Commis- 

for leave to intervene dropped. 

Attorney General of Colorado 35 

Number PhiUips County 

2015. Carlson et al. v. Aiistin et cd. as Cminty Cawmissioners of 
Phillips Cminty and State Board of Land Commissioners. Suit 
to establish disputed boundaries. Pending. 

Prowers County 

City of Lamar v. The PvhJic Utilities Cmnmission. Writ of 

certiorari to review an order of the Commission allowing oper- 
ation to the Town of Granada. Pending. 

Park County 

1932. Miller v. Barkley, Water Commissioner. Injunction to re- 
strain use of water and for damages. Pending. 

1959. Northern Colorado Irrigation Company et al, v. Miller et al. 
Action involving water priorities. Temporarj^ injunction 
granted. Pending. 

Pueblo County 

22830. People ex rel. Attorney General v. Railway Savings & Build- 
ing Association. Application for receiver. Granted. Associa- 
tion discharged from receivership subject to general supervision 
of the Building and Loan Department February, 1934. 

Y. W. C. A. as Trustee v. Paid P. Prosser as Attorney Gen- 
eral et al. Construction of charitable trust. Decree pursuant 
to praj^er of complaint June 22, 1933. 

23919. Forhush & Company v. Bedford as State Treasurer. Suit to 
recover gas tax. Pending. 

Routt County 

State Highway Department v. Otto, et al. Condemnation 

proceeding for right of way. Pending. 

Rio Grande County 

3829. People v. McGuire as Treasurer of Bio Grande County. 
Mandamus. Pending. 

Teller County 

4446. Midland Terminal By. Co. v. Colorado Tax Commission. 

4460. Midland Terminal By. Co. v. Colorado Tax Commission. 

4479. Midland Terminal By. Co. v. Colorado Tax Commission. 


36 Biennial Report 

Number Washington County 

2845. L. M. Atwood v. Washington County and The State of Colo- 
rado. Highway case. Dismissed May 31, 1933. 

Otis Investment Company v. State Highway Department of 

Colorado. Suit to recover for gravel used in highway construc- 
tion. Pending. 

Weld County 

7634. Morrison v. Admns, et (d. Damages growing out of coal 

7635. Nelson v. Adams, et al. Damages growing out of coal strike. 

7636. Morrison v. Adams, et al. Damages growing out of coal 

7637. Sparros v. Adams, et al. Damages growing out of coal 

7638. Ilcrrera v. Adamis, et al. Damages growing out of coal 

7639. Mazzine v. Ada^ms, et al. Damages growing out of coal 

7640. Bricrley v. Adams, et al. Damages growing out of coal 

7641. Zarini v. Adams, et al. Damages growing out of coal strike. 

7642. Gforgeff v. Adwms, et al. Damages growing out of coal 

7643. Jacovctte v. Adams, et al. Damages growing out of coal 

7644. Milo V. Adams, et al. Damages growing out of coal strike. 

7645. Brandon v. Adams, et al. Damages growing out of coal 

7646. HottinrUi v. Adams, it aJ. Dnningos growing out of coal 

7647. K rivokopirh v. Adums, et al. Damages growing out of coal 

7648. Pappus v. Adams, <t al. Damages growing out of coal strike. 

7649. Sokrodia v. Adams, ct al. Damages growing out of coal 

7650. lluUivh v. Adams, et al. Damages growing out of coal 

( Above 17 eoKes dismis-sed November 17. 1933, for want of 

Attorney General of Colorado 37 


8492. In the matter of the adjudication of priorities of water rights 
in Irrigation District No. 1. Claim of State Land Board. Ros- 
ener Reservoir. Continuod pending" convenience of the court. 

8427. School District No. 32 in County of Weld v. Jesse R. Patter- 
son as County Treasurer. Injunction. Pending. 

6930. Dolia Myshnc v. Frasier and Armentrout, Trustees of the 
State Normal School. Suit by student to compel reinstatement 
and for damages. Judgment for defendants May 13, 1933. 

6932. Earl Darley v. Frasier amd Armentro^it, Trustees of The 

State Normal School. Suit by student to compel reinstatement 

• and for damages. Case dismissed with prejudice May 2, 1933. 

8850. Capron v. Bedford, Treasurer of the State of Colorado et al. 
Injunction to restrain collection of motor vehicle taxes. Pend- 

8889. Hoyt et al. v. Trustees of the State Normal School. Injunc- 
tion to restrain construction of a dormitory. Judgment for de- 
fendants September 8, 1934. To be appealed. 

Yuma County 

2901. M. E. Christ et al. v. Henry Armknecht et al. Mortgage 
foreclosure involving Board of Regents. Judgment in favor 
of Regents, October 2, 1934. 

2886. Neikirk et al. v. Anderson et al. Boundary dispute. Ijand 
Board interested. Findings and decree in favor of Land Board 
February 20, 1934. 

Hisington v. Board of Chiropractic Examiners. Petition for 

writ of certiorari (for license). Dismissed. 

38 Biennial Report 


(Action to Set Aside Awards of the Industrial Commission 
of Colorado.) 

Boulder County- 
Title No. Judgment of the District Court 

Frank v. Ind. Com. et al Award affirmed 

(Pending in Supreme 

Denver Coimty 

Aetna Life Insurance Co. et al. v. Ind. 

Com. and Dick A-6505 Settled and dismissed 

Allodial Realty Co. v. Ind. Com. and 

Pierce A-7488 Dismissed 

Allan, et al. v, Ind. Com. and Gettler Award affirnud 

(Judgment affirmed in Su- 
preme Court) 
Allodial Realty Co. v. Ind. Com. and 
Pierce A-8703 Award affirmed 

Blixt V. Ind. Com. et al A-11417 Pending 

Botleman v, Ind. Com. et al A~8792 Award set aside 

(Judgment affirmed in Su- 
preme Court) 
Boulder Valley Coal Co. et al. v. Ind. 

Com. and Shlpka A-8013 Award affirmed 

(Judgment affirmed in Su- 
preme Court) 
Central Surety Co. et al. v. Ind. Com. 

and Lard \-6806 Award affirmed 

(Judgment reversed in Su- 
preme Court ) 

Clarke v. Ind. Com. et al Aw.-trd iiffirniod 

(Judgment affirmed in Su- 
preme Court) 
Clayton Coal Co. et nl. v. Ind. Com. an^ 

Znk \-7274 Award affirmed 

(Judgm«>nt affirmed In Su- 
preme Court) 
Clayton Ciml Co et al. v. Ind. Com, and 

Tsikirln Award affirmed 

(Judgment affirmed In Su- 
preme Court) 
Clayton Coal Co. et nl. v. Ind. r'om. nnd 

De Santls \-9302 Award affirmed 

(Judgment affirmed In Su- 
preme Court) 
Colo. Fuel and Iron co. v. Irni. Com. atil 

Vasquex Award nffirmod 

(Judgment reversed In Su- 
preme Court) 
Continental Grf.r«ry Corp. ot al. v. In«i 

Com. and Hale ' ►iBmln.sid 

Danielson. et al. v. Ind. Com. and Neu. .A- 10882 Award afflrmed 

Dnvln V. Ind. Com. et al A-8687 Award afllrmea 

Denvor Tramway Co. v. Ind. Com. ond 
liulj A.'*?^.^ nemnndrd to Iml i'mu for fur- 
ther action 
Dorchak v. Ind. Com. et *!.. . Ponding 

DrincoU Const. Company, et al. v. Ind. 

Com. and Brkrr A-69&0 Award affirnnMl 

(Judgment aMlnnril in Su- 
preme Court) 
Empire Zinc Co. v. Ind. Com. ond Vaa- 
ques l»isii,iv,v...,i 

Attorney General of Colorado 39 

Title No. Judgrnent of the District Court 

Empire Zinc Co. v. Ind. Com. and Vas- 

quez A-6704 Award atfirmed 

(Judgment affirmed in Su- 
preme Court) 
Fraker Coal Co. et al. v. Ind. Com. and 

Reynolds A-7578 Award set aside 

(Judgment reversed in Su- 
preme Court) 
Hayden Bros. Coal Co. et al. v. Ind. 

Com. and Uzenski A-7784 Award affirmed 

Judgment affirmed In Su- 
prem.e Court) 

Heinel v. Ind. Com. et al A-9262 Award affirmed 

Hope V. Ind. Com. et al A-8283 Award affirmed 

Iowa Gold Mining Co. et al. v. Ind. Com. 

and Holt Award affirmed 

Jabot V. Ind. Com. et al A-7713 Award affirmed 

(Judgment affirmed in Su- 
preme Court) 
Kemper, Kelly and Kitch. et al. v, Ind. 

Com. and La Pier Remanded to Ind. Com. for 

further action 
Knox, et al. v. Ind. Com., McKune 

et al Awa rd set aside as to the 

(Judgment affirmed in part 
and reversed in part in Su- 
preme Court) 

Lang V. Ind, Com. et al A-7490 Remanded to Ind. Com. for 

further action 

Leyden v. Ind. Com. et al A-8496 Award affirmed 

Lloyds Casualty Co. et al. v. Ind. Com. 

and Curtis Dismissed 

Lockard v. Ind. Com. et al A-5814 Award affirmed 

(Judgment affirmed in Su- 
preme Court) 
London Guarantee and Accident Co. et 

al. V. Ind. Com. and Sauer Award affirmed 

(Judgment affirmed in Su- 
preme Court) 
London Guarantee and Accident Co. et 

al. V. Ind. Com. and Bradley Settled and dismissed 

London Guarantee and Accident Co. et 

al. V. Ind. Com. and Clayton Award affirmed 

London Guarantee and Accident Co. et 

al. V. Ind. Com. and Force Award affirmed 

London Guarantee and Accident Co. et 

al. V. Ind. Com. and Rowland A-8727 Award affirmed 

(Judgment reversed In Su- 
preme Court) 
London Guarantee and Accident Co. et 

al. V. Ind. Com. and McCoy A-9018 Award affirmed 

(Pending in Supreme 
London Guarantee and Accident Co. et 

al. V. Ind. Com. and Winteroth A-9237 Award affirmed 

London Guarantee and Accident Co. et 

al. V. Ind. Com. and Coffeen Award affirmed 

McFadden v. Ind. Com. et al. McLain 
Chevrolet Co. v. Ind. Com. and Botle- 

man Award vacated 

Moffat Coal Co. et al. v. Ind. Com. and 

Podbelsk A-10836 Award affirmed 

Montgomery v. Ind. Com. and Meinin- 

ger A-9094 Award set aside 

(Judgment reversed in Su- 
preme Court) 
Morey Merc. Co. et al. v. Ind. Com. 

and Flynt Pend ing 

Morrow v. Ind. Com. et al A-9919 Pending 

Moynihan v. Ind. Com. et al Award set aside 

(Judgment affirmed in Su- 
preme Court) 

40 Biennial Report 

Title No. Judgment of the District Court 

Nixon V. Ind. Com. et al A-10839 Pending 

Peyton v. Ind. Com. et al Award affirmed 

Pollard V. Ind. Com. et al A-8874 Award affirmed 

(Judgment affirmed in Su- 
preme Court) 
Post Printing and Publishing Co. et al. 

V. Ind. Com. and Erickson A-6949 Award affirmed 

(Judgment reversed in Su- 
preme Court) 
Post Printing and Publishing Co. et al. 

V. Ind. Com. and Marvin A-7558 Award affirmed 

Radovich v. Ind. Com. et al A-8200 Award set aside 

(Judgment reversed in Su- 
preme Court) 
Rocky Mt. Fuel Co. et al. v. Ind. Com. 

and Wilson Aw.ird affirmed 

(Judgment affirmed In Su- 
preme Court) 
Rocky Mt. Fuel Co. el al. v. Ind. Com. 

and Sherratt A-7387 Aw'ard set aside 

(Judgment affirmed In Su- 
preme Court) 
Rocky Mt. Fuel Co. et al. v. Ind. Com. 

and Fossat A-9434 Award set aside 

Rocky Mt. Fuel Co. et al. v. Ind. Cora. 

and Kruzic Award affirmed 

(Judgment reversed in Su- 
preme Court) 
Rocky Mt. Fuel Co. et al. v. Ind. Com. 

and Canivez Award affirmed 

(Pending in Supreme 
Rocky Mt. Fuel Co. et al. v. Ind, Com. 

and Sherratt A-11202 Pending 

Hoeder v. Ind. Com. and Hofman A-8879 Pending 

Rogers v. Ind. Com. et al Award affirmed 

(Judgment affirmed In Su- 
preme Court) 
Russell Coal Co. et al. v. Ind. Com. and 

De Santis A-7033 Award set aside 

Standard Accident Ins. Co. et al. v. Ind. 

Com. and BoHtwick A-8583 Award affirmed 

Stand.ird Accident Ins. Co. et al. v. Ind. 

Com. and Catlln .\-63JM Award affirmed 

Standard Accident Ins. Co. et al. v. Ind. 

Com. and Dansdlll A- 104 35 Pendlrg 

State Comp. In.s. Fund ot al. v. Ind. Com. 

and Susman .\-6371 Award sot a.-^ide 

(Juilgmont affirmed In Su- 
preme Court) 
Stale Comp. Ins. Fund et al. v. Ind. Com. 

and HagKerty A-6438 Award affirmed 

(Judgment affirmed In Su- 
preme Court) 
Slate Comp. Ins. Fund et al. v. Ind. Com. 

and Hall A-6522 Award set a«lde 

Swanson v. Ind. Com. el al. . \\vj«r«l s«>t a.sid«> 

(Jutlgmcnl affirmed In Su- 

preme Court) 

Ule V. Ind. Com. el al A-10463 PondlnR 

United Stntca Fidelity and Guaranty Co. 

cl al. V. Ind. Com. an<l Coxo Award urrirnied 

United Slalen Fidelity ami (Guaranty Co. 

el al. V. Ind. Com. and (lunicnle A-6806 Award set aside 

United States Fidelity and Ouarunty Co. 

ct al. V. Ind. Com. FleminK ut ki A-1076S Pendinf 

United States Fidelity and Guaranty Co. 

et III. V Ind. t'oiM. and Vun»cer A-11SS4 Pendlnc 

Vreelind Radio Corp. et mI. v. InO. Com. 

and Morfan Award arrirmed 

White et al. v. Ind. Com. et ul A-lli)07 I'l n.llng 

Attorney General op Colorado 41 

Title No. Judgment of the District Court 

Winteroth v. Ind. Com. et al Award affirmed 

(Judgment affirmed in Su- 
preme Court) 
Zupet V. Ind. Com. et al A-9260 Dismissed 

El Paso County 

Golden Cycle Corp. v. Ind. Com. and 

Brooks 19713 Award affirmed 

Martinez v. Ind, Com. et al Award affirmed 

Pikes Peak Fuel Co, v, Ind. Com. and 

Nickell 19714 Award affirmed 

Pikes Peak Fuel Co, v Ind. Com. and 

Kapsimalis 19777 Settled and dismissed 

Huerfano County 

Kosmos V, Ind. Com. et al Award affirmed 

(Motion to dismiss writ of 
error grranted) 

Taylor v. Ind. Com. et al Dismissed 

Larimer County 

Kyle V. Ind. Com. et al Award affirmed 

Wright V. Ind. Com. et al 7003 Award affirmed 

Las Animas County 

Nucci V. Ind. Com. et al Pending 

Sefcek v. Ind. Com, et al Award affirmed 

Logan County 

McBride, et al. v. Ind. Com. et al 6207 Award affirmed 

Morgan County 

Dregman, et al, v. Ind. Com. et al Award, affirmed 

Keeler v, Ind. Com. et al Award affirmed 

Peer v, Ind. Com. et al Award affirmed 

(Judgment affirmed in Su- 
preme Court) 

Phillips County 

Cooperative Oil Co. v. Ind. Conx, and 

Meile Award set aside 

(Judgment reversed in Su- 
preme Court) 

Pueblo County 

Ashley Lumber Co. et al, v, Ind. Com. 

and Crites Dismissed 

Century Indemnity Co. et al, v. Ind. Com. 

and Klipf el Pending 

Grove Drug Co, v. Ind. Com, and Wil- 
liams Award affirmed 

Lindvay v. Ind. Com. et al , .23278 Award set aside 

(Judgment reversed in Su- 
preme Court) 

Poole V. Ind. Com. et al Award affirmed 

(Judgment affirmed in Su- 
preme Court) 

Roper V. Ind. Com. et al Petition for writ of mandamus 


(Judgment affirmed in Su- 
preme Court) 

Summit County 

Springmeyer v. Ind. Com. et al 1714 Pending 

Weld County 

Ralston v. Ind, Com 8685 Award affirmed 

42 Biennial Report 


Denver County 

No. 51665 In the innfAer of the appraisal of the estate of Charles 
W. Waterman for the purpose of Inheritance Tax. Judgment 
for Protestants May 16, 1934. 

McDonald v. Romstetter and Official Colorado State 

Relief Committee. Appealed from justice court. Pending. 


Arapahoe County 

Estate of Earnhardt Peterson, deceased. 

Estate of Edward Shortell, deceased. 

Estate of Mary O 'Boyle, deceased. 

Chaffee County 

Estate of William H. Huffman, deceased. 

Estate of Steve Stozonieh, deceased. 

Estate of George Woods, deceased. 

Estated closed and money paid to State Treasurer. 

Clear Creek County 

Estate of C'liarles J. Olson, deceased. 

Estate of Henry Schluter, deceased. 

Costilla County 

Estate of Andrew Thomas, deceased. 

Estate closed and money paid to State Treasurer. 

Denver County 

Estate of Charles Aiekelin. deceased. 

Money paid to heirs upon court onler. 

Estate of Andrew Anderson, also known as Cnrl Hanson, Charles 

Attorney General of Colorado 43 

Estate of Charles Auge, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Edward Campbell, deceased. 

Estate of Nick Constantine, deceased. 

Money paid to heirs upon court order. 

Estate of John W. Davis, deceased. 

Petition for order requiring Treasurer to pay money to heirs. 

Estate of John Thomas Ekenstan, deceased. 
Money paid to heirs upon court order. 

Estate of Harry Faltrick, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of William A. Faust, deceased. 

Money paid to heirs upon court order. 

Estate of Joseph Kuesch, deceased. 

Estate of Fred Kremers, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Alice A. Land, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Frank Lawrence, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Charles H. Marks, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Arthur McVaugh, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of D. J. Miller, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Michail O'Keef, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Louis Peters, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Etta M. Reyonlds, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Albert Rogers, deceased. 

44 Biennial Report 

Estate of Mary E. Sweeney, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of William Sommers, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Charles E. Vaillencourt, deceased. 

Petition for order requiring treasurer to pay money to licirs. 

Estate of Mary Whalen, deceased. 

Estate of John Willi, deceased. 

Estate closed and money paid to State Treasurer. 

Dolores County 

Estate of James Best, deceased. 

Elbert County 

Estate of Charles Runsch, decea.sed. 

Estate closed and money paid to State Treasurer. 

El Paso County 

Estate of Frank Hayes, deceased. 

Estate of Charles B. Forrin, deceased. 

Money paid to heirs upon court order. 

Estate of Edward A. From, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Axel Johnson, deceased. 

Estate of Elizabeth Pye, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Maggie Sullivan, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Joe M. Van Kirk, deceased. 

Money p;nd to hoirs upon oonrt order. 

Fremont County 

Estate of ('arlr« lirown, (leccascd. 

Estate closed and money paid to State Treasurer. 

Estate of E<]ward Onrland, deceased. 

Attorney General of Colorado 45 

Garfield County 

Estate of W. E. Goodrich, deceased. 

Huerfano County 

Estate of Silas 0. Tartar, deceased. 

Estate closed and money paid to State Treasurer. 

Jackson County 

Estate of George B. Clark, deceased. 

Estate closed and money paid to State Treasurer. 

Jefferson County 

Estate of Mary Herman, deceased. 

Estate closed and money paid to State Treasurer, 

La Plata County 

Estate of Joseph Grobecker, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of John Webb, deceased. 

Las Animas County 

Estate of Hengo Borath, deceased. 

Estate closed and money paid to State Treasurer. 

Estate of Antonio Mata, deceased. 

Estate closed and money paid to State Treasurer. 

Lincoln County 

Estate of Marie J. Turner, deceased. 

Estate closed and money paid to State Treasurer. 

Logan County 

Estate of Margaret R. 'Brien, deceased. 

Estate of John Tynan, deceased. 

Estate closed and money paid to State Treasurer. 

Mesa County 

Estate of Frank 'Neal, deceased. 

Estate closed and money paid to State Treasurer. 

46 Biennial Report 

Moffat County 

Estate of A. B. Dill, deceased. 

Estate closed and money paid to State Treasurer. 

Montrose County 

Estate of John Kwatkowski, deceased. 

Estate closed and money paid to State Treasurer. 

Morgan County 

Estate of Jane O'Hara, deceased. 

Estate closed and money paid to State Treasurer. 
Estate of Katherine Peterson, deceased. 

Estate closed and money paid to State Treasurer. 

Pueblo County 

Estate of Anrnes M. Hicks, decea-sed. 

Estate of John Henry Waite, deceased. 

Estate closed and money paid to State Treasurer. 

Rio Blanco County 

Estate of Jacob Krenprer, deceased. 

Estate closed and money paid to State Treasurer. 

Sagfuache County 

Estate of 'i'hoiiuis II. Tlioinpson, (h^'rased. 

San Miguel County 

Ksiiih' of Andrew I^ivciis. deceased. 

Estate of Charles Loss, deceased. 


Summit County 

Estate of Thomas Catncy. deeeiised. 

Estate closed an«l money paid to State Treasurer. 

Teller County 

Estate of Edward K'^ndall, deceased. 

Estate closed and money paid to State Trea.surer. 

Washington County 

Estate of Euj^ene Proudy, deceased. 

Attorney General of Colorado 47 


Denver County 

People V. Max Schiff and Colorado Paper Producis Co. Claim for 
damages on behalf of Boiler Inspector. Judgment for plain- 
tiff satisfied April 20, 1933. 

Colorado State Board of Examiners of Architects v. Redding and 
Jones. Money demand on short check. Judgment by default 
July 10, 1933. 

McDmudd v. Ramstetter arid Official Colorado State Relief Com- 
mittee. Suit to garnish Federal Relief Funds. Judgment for 
defendant garnishees January 5, 1933. Appealed to County 

Arapahoe County 

Green v. Dunlap. Case involving money held by Highway Depart- 
ment. Money paid over according to finding of court. 

48 Biennial Report 


In the United States Supreme Court — Cases disposed of, 9 ; cases 
pending, 3; total, 12. 

In the United States District Courts — Cases disposed of, 5; cases 
pending, 3; total, 8. 

Before the Interstate Commerce Commission — Cases disposed of, 8 ; 
cases pending, 1 ; total, 9. 

Before the Secretary of the Interior — Cases disposed of, 1 ; cases 
pending, ; total, 1. 

In the Colorado Supreme Court (Civil) — Cases disposed of, 40; 
cases pending, 11; total, 51. 

In the Colorado Supreme Court (Criminal) — Cases disposed of, 33; 
cases pending, 10; total, 43. 

In the Colorado Supreme Court (Workmen's Compensation) — 
Cases disposed of, 37 ; cases pending, 3 ; total, 40. 

In the Colorado District Courts (Miscl.) — Cases disposed of, 102; 
cases pending, 63 ; total, 165. 

In the Colorado District Courts (Workmen's Compensation) — 
Cases disposed of, 87; cases pending, 15; total, 102. 

In Colorado County Courts (Miscl.) — Cases disposed of, 1; cases 
pending, 1 ; total, 2. 

In Colorado County Courts (Escheat and Probate) — Cases disposed 
of, 45; cases pending, 26; total, 71. 

In the Justice of the Peace Courts — Cases disposed of, 4; cases 
pending, 0; total, 4. 

Before the Colorado (^ivil Service Commission — Hearings held, 10. 

Total number of cases disposed of 382 

Total numl)er of cases pending 13G 

Total numlH»r of cases handled during biennial period ...518 

Extraditions handle*! 178 

Extradition hearings before ♦he Governor 34 





Note : These syllabi and opinions are reported in the chrono- 
logical order of the dates on which the opinions were rendered. 
A copy of each opinion is on file under a number corresponding 
with that of the syllabus. 

Attorney General of Colorado 51 

Opinions and Syllabi of Opinions 


To Miss Olga Hellback, December 29, 1932. 


Ch. 83, S. L. 1927, provides that the county treasurer shall de- 
posit all of the funds that shall come into his possession by virtue 
of his office in one or more responsible banks, and such bank or 
banks shall pay interest on the average daily balances at such rates 
as may be agreed upon and shall credit the same to the account of 
such Treasurer monthly. The act further provides that all interest 
so paid shall be and become a part of the General Fund of the 


To Dr. 0. C. Lester, January 9, 1933. 

Duties of Superintendent. 

The Regents of the State University are charged with the gen- 
eral supervision and government of the Colorado Psychopathic 
Hospital and should require the Superintendent to give his entire 
time and attention to the w^ork thereof, in accordance with Sec. 6, 
Ch. 169, S. L. 1919. 


To Chas. F. Rumbaugh, January 10, 1933. 

Vacancy in Office of County Judge. 

Reversing Opinion No. 317, Attorney General's Report, 1931- 
1932 and holding vacancy exists in office when person elected dies 
before qualifying, as of the date of the beginning of the new term. 


To Benjamin F. Stapleton, January 24, 1933. 

Legislative Department. 

The appropriation for ordinary expenses of the Legislative 
Department is undoubtedly of the first class and is entitled to 
priority of payment (Sec. 288, p. 278, C. L. 1921). 

52 Biennial, Report 


C. C. McCune, January 27, 1933. 
Vacancy on High School Board. 

May be filled by the County Superintendent and the officer so 
appointed shall hold office only until the next ensuing election. 

In case of failure on the part of the school board to elect a 
director at the election after the appointment by the county super- 
intendent, the officer so appointed may, under Sec. 8277, C. L. 1921, 
hold office until his successor is duly elected and qualified. 

Campbell v. The People, 78 Colo., 131. 


Powers in re : Management of County Poor Farm. 

To Byron G. Rogers, January 28, 1933. 
Lease of Farm in Bent County. 

A county board cannot commit the county to a perpetual obli- 
gation. (50 Colo. 610.) 

A county board is a continuous body and has the right to enter 
into reasonable contracts extending into the future. (6 Colo. App. 
269; 88 Colo. 159.) 

A verbal lease for one year, beginning in the future, is not 
obnoxious to the Statute of Frauds. (Sears v. Smith, 3 Colo. 387.) 

A county has the right to acquire a poor farm and the statutes 
do not designate any particular manner in which it shall be man- 
aged. (27 Colo. App. 501.) 


To Royal Fisher, Jan. 28, 1933. 

Must act as a unit. 

A board of county commissioners must act as a unit and be 
governed by the majority action. fSocs. 8672, 8682, C. L. '21.) 


To Inez Johnson Lewis, January 30, 1933. 

County treasuror.s should pay school district warrants in the 
order of their registration. (Sees. 8356, 8802, 8302, 8801, 8692, 
8693. 8694. 8799, 8286, 8333, C. L. '21; 11 Colo. 134; 57 Colo. 22; 
18 Colo. 359; 83 Colo. 43; 87 Colo. 567; 257 U. S. 154; 270 U. S. 
205; 278 IJ. S. 367.) 

See S. L. 1933, Ch. 169, declaring intention of act in accord 
with above opinion. 

Attorney General op Colorado 53 


To E. D. Foster, February 1, 1933. 
Use for advertising purposes. 

The design of the seal of the State may lawfully be used by 
the Colorado Board of Immigration on silver pieces to be sold un- 
der the auspices of the Board of Immigration for the purpose of 
advertising the resources of the State. 


To J. L. Beatty, Public Trustee, February 2, 1933. 
Redemption by judgment creditors. 

The rights of judgment creditors are set out in Sections 5055 
and 5951, C. L. 1921, which do not require that they give notice 
of intention to redeem. 


Walters, Cramer and Graeberger, February 2, 1933. 
Teachers' salaries. 

1. A school district which contracts with its teachers to pay 
less than $75 per month as commanded by the Minimum Salary 
Law, may, nevertheless, receive its pro rata amount of the General 
County Fund ; 

2. The General County Fund may not be used for general 
operating expenses of the district, but must be reserved for the 
payment of the teachers' minimum salaries; 

3. A teacher who teaches without protest under a contract 
with a district for less than $75 per month, waives a right of action 
ag-ainst the district for the minimum salary of $75 per month. 


To W. S. Kennedy, Feb. 3, 1933. 

Warrants registered. 

Since Sections 8800 and 8808, C. L. 1921, provide for regis- 
tration of county warrants by the County Treasurer and Sec. 8316 
provides a penalty for failure of the County Treasurer to register 
warrants, the county treasurer should register all warrants issued 
by the county board, rather than take upon himself the responsi- 
bility of determining whether or not any particular warrant should 
be registered. 


To Colo. Tax Commission, February 3, 1933. 

The Colorado Tax Commission has authority to order the 
county commissioners to make the proper levy provided by Sec. 
8448, C. L. 1921, and may enforce such orders by appropriate ac- 
tion. (Sec. 7334, C. L. '21.) 

54 Biennial Report 

To L. B. Blair, February 6, 1933. 

The assignee of a tax sale from a county is the only person 
who is bound to pay subso([uent taxes, and the subsequent taxes 
which he pays are those which are assessed subsequent to the tax 
sale and prior to date of assignment. 

If an individual is the purchaser and receives a tax sale cer- 
tificate directly from the treasurer he is not required to take into 
account any subsequent taxes which may be assessed before asking 
for a deed. (Supplementary Opinion attached.) (70 Colo. 77; 65 
('olo. 385; 40 Colo. 89; 52 Colo. 540; 23 Colo. App. 399.) (Sec. 
9475, 9496, 7409, 7416, 7422, 7423, C. L. '21 ; S. L. 1927, p. 612.) 


To Olga Hellbeck, Feb. 6, 1933. 

Method of consolidating first class districts. 

School board may submit question to electors or one-fourth of 
electors may petition. Qualified elector defined bv Sec. 8328, C. L. 
'21. (Sec. 8315, C. L. 1921; Sec. 165, School Laws, 1927.) 


To Eleanor C. Williams, February 7, 1933. 

Method of effecting the annexation of contiguous territory to a school 

A petition signed by a majority of the legal voters residing 
within the territory to be annexed must be filed with the county 
supei-intendent, who shall fix a time for hearing and give written 
notire of the liearing to the districts involved. 


To Ray II. T.dhol. F-l.. «;. I!»:r5 
Incompatible oflicex. 

The Iiieutennnt-(Jovernc»r is not a senator nor He|>resentativo 
but is exprexsly declared to Ik- an oflieer of tlie Kxeentive Depart- 
iiwnt of State; 

The duties of State Fair Comiiiissioner arc not inoonipntibic 
with the duties of Lirutenant-Oovernor; which is also the ease with 
H'spret to th«' dutirs of the ofliee of Conimissionrr of Parks aiul 
Highways of i'urbh) County, neither of which is ineonipatibh> with 
thr oth«'r. 

Attorney General of Colorado 55 

February 6, 1933. 
Hon. Ray H. Talbot, 
Lieutenant-Governor of Colorado, 

State Capitol, 
Denver, Colorado. 
Dear Governor: 

You have orally requested my opinion upon the question as 
to whether or not you, as Lieutenant-Governor, may also lawfully 
hold at the same time the position of member of the Colorado State 
Fair Commission and the office of Commissioner of Parks, High- 
ways and Lighting of Pueblo. 

The office of Lieutenant-Governor exists by virtue of the pro- 
visions of Section 1 of Article IV of our State Constitution, and 
Section 19 of the same article provides that the Lieutenant-Gov- 
ernor shall receive for his services "a salary to be established by 
law." Section 7912, C. L. 1921, provides that ''the Lieutenant- 
Governor shall receive an annual salary of one thousand dollars." 

Membership on the Colorado State Fair Commission rests on 
appointm.ent by the Governor pursuant to the authority conferred 
by Section 477, C. L. 1921, which also specifically provides that 
members of said commission ''shall serve without pay except travel- 
ing and actual expenses." 

The office of Commissioner of Parks, Highways and Lighting 
of Pueblo is an elective office, existing by virtue of the provisions 
of Section 1 of Article II of the Charter of Pueblo, as amended 
November 4, 1913. Section 6 of Article VI, of said Charter, pro- 
vides that such Commissioner "shall be paid a salary of Twenty- 
seven Hundred ($2,700.00) Dollars per annum;" and Section 7 
of Article VI, of said Charter, provides that such Commissioner 
shall give bond in the sum of $10,000.00, conditioned that he "shall 
well and faithfully perform all of the duties of his office and shall 
account for and turn over all money, property and books of the 
city coming into his hands." 

It may be first noted, in passing, that Section R of Article V 
of our State Constitution (Providing that "no senator or repre- 
sentative shall, during the term for which he shall have been elected, 
be appointed to any civil office under this State"), has no applica- 
tion to the question now presented for the simple reason that the 
Lieutenant-Governor is not a senator or representative. By Sec- 
tion 1 of Article IV the Lieutenant-Governor is expressly declared 
to be an officer of the Executive Department of the State govern- 

Furthermore, it is at once obvious that j^our duties as a mem- 
ber of the Colorado State Fair Commission are not to the slighest 
extent incompatible with your duties as Lieutenant-Governor and 
as Commissioner of Parks, Highways and Lighting of Pueblo. 
Under the provisions of Section 477, C. L. 1921, supra, you were 

56 Biennial Report 

appointed as a member of the Colorado State Fair Commission as 
a resident of Pueblo County, and your duties as such relate to the 
control and management of the state fair which is held annually 
in the City of Puebo. These duties in connection with the holding 
of the state fair in the city where you reside are not continuous, 
but occassional, transient and incidental; and it readily appears 
that they are not incompatible with your duties as Lieutenant- 
Governor and as Commissioner of Parks, Highways and Lighting. 
Moreover, there is no constitutional or statutory prohibition against 
the Lieu^^cnant-Governor's holding at the same time the position 
of member of the Colorado State Fair Commission. 

It follows that any question of incompatibility between the 
aforementioned positions now held by you could only arise in re- 
spect to the office of Lieutenant-Governor and the office of Com- 
missioner of Parks, Highways and Lighting of Pueblo. 

There is no inhibition in either the Constitution or statutes 
of this State which would prevent the Lieutenant-Governor from 
also holding at the same time the office of Commissioner of Pueblo. 

Nor. in my opinion, is there any incompatibility between these 
two offices under the principles and doctrine of the common law. 

The ordinary duties of the Lieutenant-Governor arise under 
Section 14 of Article IV of the State Constitution providing that 
he "shall be president of the Senate," and under the provision 
of Section 13 of Artice IV, to the effect that he shall act as Gov- 
ernor during the latter 's absence from the State. It may also be 
noted in this connection that the Lieutenant-Governor is expressly 
excepted from the provision of Section 1, of said Article IV, re- 
quiring the officers of the Executive Department to '* reside at the 
seat of government." 

The function.s of the office of Commissioner of Parks, High- 
ways and Lighting of Pueblo are defined by Sections 4 and 5 of 
Article V of tho Charter of Pueblo, and they pertain exclusively 
to that city. P.y Section 9 of Article VI of said Charter it is fur- 
tlifT provided as follows: 

"All persons holding any office or employment under 
the city, whether elective or appoint iv«\ shall be rcijuired 
to engage in the actual work of the office or employment 
so held, to the extent that their services may be neces.sary 
for the full and complete discharge of the duties of such 
office or cinployinont. jithI a fnilnro so to do shall bo ground 
for removal." 

(vOnMidering the respective duties and functions of the Lieu- 
tonant-Governor and of the Connnissioner of I*arks. Highways and 
liightinp of Pueblo, it is my opinion that they are not in any 
manner cr to any extent inconsistent or rei)ugnant, or s»ich as to 

Attorney General of Colorado 57 

render it improper for the incumbent of one of such offices to oc- 
cupy at the same time the other. 

46 Corpus Juris, pp. 941-943 ; 

Mechem, Public Officers, Sec. 422, pp. 268-269 ; 

Condon v. Knapp (1920), 106 Kans. 206, 187 Pac. 660; 

State ex rel. Tzschuck v. Weston (1876), 4 Neb. 234. 
The general rule here applicable is laid down in 46 Corpus 
Juris, at pages 941-943, supra, as follows: 

**At common law the holding of one office does not 
of itself disqualify the incumbent from holding another 
office at the same time, provided there is no inconmtency 
in the functions of the two offices in question. * * * The 
inconsistency, which at common law makes offices incom- 
patible, does not consist in the physical impossibility to 
discharge the duties of both offices, but lies rather in a 
conflict of interest, as where one is subordinate to the other 
and subject in some degree to the supervisory power of 
its incumbent, or where the incumbent of one of the of- 
fices has the power to remove the incumbent of the other 
or to audit the accounts of the other." (Italics mine.) 

So, also, in reference to the inconsistency in functions which 
would render two offices incompatible, it is said in Mechem on 
Public Officers, at Sec. 422, page 269, mpra : 

"It must be an mconsistency in the ftinctions of the 
two offices, such as judge and clerk of the same court, 
claimant and auditor, and the like." (Italics mine.) 

In Condon v. Knapp, supra, the Supreme Court of Kansas, 
in holding that the office of assistant chief food and drug inspector 
and of hotel commissioner were not incompatible, said (187 Pac, 
at page 661) : 

"Unless prohibited by constitutional provision or stat- 
utory law, one person may hold two offices if their duties 
are not incompatible with each other. * * * 

"There is no prohibition against one person holding 
the office of assistant chief food and drug inspector and 
that of hotel commissioner. No incompatibility is shown 
to the court or perceived by it." 

So, too, in State ex rel. Tzschuck v. Weston, supra, a leading 
case, the Supreme Court of Nebraska held that the offices of Sec- 
retary of State and Adjutant General were not incompatible. In 
the course of its opinion the court said (4 Neb., at page 342) : 

"Nor do we see any reason why the person who hap- 
pens to hold the office of secretary of state may not, at 
the same time, hold that of adjutant general. It is true 
that the duties of the two offices are entirely dissimilar, 

58 Biennial Report 

but they are in no respect antagonistic, and, so long as 
the incumbent is \villing to undertake the performance of 
both, in tlie absence of a law prohibiting it, we are of the 
opinion he may do so." 

Applying the rule laid down by the anthorities from which 
I have jnst quoted to the question now under consideration, it 
would seem plain that, although the duties of Lieutenant-Governor 
and of Commissioner of Parks, TTighAvays and Lighting of Pueblo 
are entirely dissimilar in their nature and character, yet they are 
in no respect inconsistent and repugnant ; and, therefore, they are 
not incompatible. 

Nor does the fact of your absence from Pueblo on account of 
your duties as Lieutenant-Governor during the session of the Gen- 
eral Assembly render such duties, for the time being, incompatible 
with your duties as said Commissioner of Parks, liighwaj's and 
Lighting of Pueblo. 

As said in 46 Corpus Juris, at page 942, hereinbefore quoted: 

***** The inconsistency, which at common law makes 
offices incompatible, does not consist in physical impossi- 
bility to discharge the duties of both offices." (Italics 

And in 22 Ruling Case Tjaw, at page 413, the same rule is 
stated as follows: 

<<* * * ^^^ does incompatibiity consist of the physical 
disability of discharging the duties of both offices at the 
same time." 

So, too. it is said in Mechcm on Public Officers, See. 422, at 
page 269, supra: 

"It seems to be wpII settled that the mere physical 
impossibility of one person's ])erforming the duties of the 
two ofiices as from the lack of time or the inability to be 
in two places at the same moment, is not the incompati- 
bility here referred to." 

So, even if it were physically inipossibe during the session 
of the General Assembly for you to discharge the duties of both 
tho offiee of Lieutenant-(iovernor and of Commissioner of Parks, 
Highways and Lighting of Pueblo, that fact, of itself, would still 
not render those offices incompatible. 

However, in my opinion, your temporary presence as Lieu- 
tenant-Governor at the seat of government during the session of 
the General Assembly does n/)t render it ])hysically impossible for 
you to perform your duties as Commissioner of !*arks. Highways 
and Lighting ot' Pueblo. Kven while here in the performance of 
your <luties as the presidiuL' officer of the Senate, you arc still 

Attorney General of Colorado 59 

within such a comparatively short distance from Pueblo that it 
may be easily covered by motor or rail, in about three hours. In 
an emergency you could cover the same distance in an aeroplane 
in a little more than an hour. The long distance telephone con- 
stantly affords you while here the opportunity of immediate com- 
munication with any other officer of Pueblo, and particularly with 
the employes of j^our department. Moreover, you are afforded fre- 
quent opportunities to return to Pueblo during adjournments of 
the Senate ; and, if necessity required it, you could without doubt 
personally visit that city practically every twenty-four hours in 
connection with the performance of your official duties there as 
Commissioner without its interfering with the performance of 
3^our official duties here as Lieutenant-Governor. These facts are 
ample to demonstrate, T submit, that your official duties as Lieu- 
tenant-Governor do not render it physically impossible for you to 
perform your official duties as Commissioner of Parks, Highways 
and Lighting at Pueblo ; and that, notwithstanding your temporary 
presence here during the session of the General Assembly, you 
are not thereby prevented from engaging in the actual work of 
your office as Commissioner to the extent that your services ''may 
be necessary for the full and complete discharge of the duties of 
such office," as required by Section 9 of Article VI of the Charter 
of Pueblo to which reference has hereinbefore been made. 

It is, therefore, my opinion that you may lawfully and prop- 
erly hold both the office of Lieutenant-Governor and that of Com- 
missioner of Parks, Highways and Lighting of Pueblo at the same 
time, and that you are further entitled to receive the emoluments 
of each. 

In conclusion, let me invite your attention to the opinion of 
former Attorney General Clarence L. Ireland, given to Governor 
William H. Adams under date of May 1, 1931 (and appearing in 
the Biennial Report of the Attorney General for 1931-1932, at 
page 76) in which it was held that there was no incompatibility 
between the office of Lieutenant-Governor and the office of Secrc: 
tary to the Governor. 

Respectfully submitted, 


Attorney General. 


To Governor Johnson, Feb. 8, 1933. 

Authority of Board to purchase supplies. 

The power of the Auditing Board, granted by Sees. 277 and 
279, C. L. 1921, as amended, is not the power to purchase, but 
the power to authorize the purchase of necessary supplies by the 
chief officers of the executive and judicial departments. 

60 Biennial Report 


To Senator Elliott, February 9, 1933. 

Authority of Board to control appropriations for or supervise expendi- 
tures of Legislative Department. 

February 9, 1933. 
Senator David Elliott, 
State Capitol, 
Denver, Colorado. 

Dear Senator: 

You request my opinion as to whether or not the Auditing 
Board has authority to control appropriations, or to supervise 
expenditures, made or incurred for or on behalf of the Legislative 
department of the State government. 

There is no Constitutional or statutory provision whereby such 
authority is expressly conferred upon the Auditing Board, or from 
which it could be implied. 

Indeed, Section 277, C. L. 1921, as amended by the Twenty- 
eighth General Assembly in 1931 (Chapter 53, Session Laws 1931, 
page 159), provides that the Auditing Board shall have control 
and direction of "all appropriations made by the General Assem- 
bly for the several Executive and Judicial departments and State 
Institutiarus, Boards and Burea\ui;'* and Section 279, C. L. 1921, 
as amended in 1931 (Chapter 53, Session Laws 1931, pages 159- 
160), providing for the exercise of such authority over expendi- 
tures for "necessary supplies, printing, postage, stationery, tele- 
phone, telegraph, expenses and miscellaneous charges," relates 
specifically only to those expenditures aforementioned that are 
proposed to be made by the "several l)i-anches of the l^xocutive 
and Judicial departments." 

It is plain that the authority I'onftMTed u])on the Autliting 
Board by Sections 277 and 279, C. Ij. 1921, as amended, in respect 
to directing and controlling api)ropriations and to supervising ex- 
penditures, relates only to the Executive and Judicial departments. 

It is, therefore, my opinion that, in the absence of statutory 
authority therefor, the Auditing lioard has, and wt^uld have, no 
power whatsover to coiitrol or to direet aj)i)ropriations, or to .supcr- expenditures, made or incurred for or on behalf of the Legis- 
lative department. 

This confirms the oral opinion expressed yesterday by me at 
the weekly meeting of the Auditing Board, of which you saw men- 
tion in the public press. 



Attorney General. 

Attorney General of Colorado 61 


To F. H. Zimmerman, February 16, 1933. 

The Colorado State Hospital is not obliged to receive patients 
either for observation or pending the action of the proper county 
lunacy commission, (Sees. 550, 551, 573, C. L. '21.) 


To F. D. Allen, Feb. 17, 1933. 

Bonds of. 

The giving of bond by Deputy District Attorney is required 
and is a necessary ex])ense of the county and the county should 
pay the premium thereon in accordance with Sees. 5992, 7992, C. L. 
1921. (29 Colo. 169; 57 Colo. 106.) 


To Governor Johnson, Feb. 24, 1933. 

Proposal to call a convention to ratify amendment repealing the 18th 
Amendment to the U. S. Constitution — said convention delegates 
to be elected by present Legislature: 

1. Proposed method of ratification is unconstitutional: because 
not contemplated by Congressional Resolution (see political 

platforms) ; 

2. Opposed to clear intent and purpose of Federal Constitution — 

(a) See wording, 

(b) See interpretation of "convention" by Original Convention 
and by original 13 states which ratified the Constitution. 

February 24, 1933. 
Hon. Edwin C. Johnson, 
Governor of Colorado, 
Capitol Building, 
Denver, Colorado. 
My Dear Governor: 

You have requested the opinion of this office concerning a 
proposed Senate Joint Kesolution, introduced in the Senate vester- 
day, entitled, ''SENATE JOINT RESOLUTION NO. 12 (bV Sen- 

This resolution recites, in substance, that the Congress of the 

62 Biennial Report 

United States has resolved that an "Article be proposed as an 
amendment to the Constitution of the United States, which shall 
i)e valid to all intents and purposes as part of the Constitution 
when ratified by the conventions of three-fourths of the several 

The proposed resolution then sets forth the Article as sub- 
mitted b}' the Confess, and which Article reads as follows: 


"Section 1. The eighteenth article of amendment to 
the constitution of the Ignited States is hereby repealed. 

"Section 2. The transportation or importation into 
any state, territory or possession of the United States for 
delivery or use therein of intoxicating liquors, in violation 
of the laws thereof, is hereby prohibited. 

"Section 3. This article shall be inoperative unless 
it shall have been ratified as an amendment to the con- 
stitution by the conventions of the several states, as pro- 
vided in the constitution within seven years from the date 
of the submission hereof to the states by the congress." 

The proposed resolution then provides that a Convention be 
called to convene at the State Capitol on Wednesdaj^ March 1, 
1933, "for the purpose of acting upon the ratification of the said 
proposed amendment to the Constitution of the United States." 
And that said Convention shall consist of the Lieutenant-Governor, 
who shall act as its presiding officer, and thirty-four delegates, 
twelve of whom shall be elected by the Senate with the concur- 
rence of the House of Representatives, and that twenty-two dele- 
gates shall be elected by the House of Representatives with the 
concurrence of the Senate, and that the Lieutenant-Governor shall 
vote only in case of a tie, and further tliat a majority of tlu* dele- 
gates so elected shall eonstitute a quorum for the transaction of 
business, and that if and when such convention sliall ratify the 
proposed amendment to the Federal constitution, certified copies 
of the resolution of ratification shall be forwarded to the Governor 
of this State, the IVesident of the United States, the Secretary 
of State of the Unit<Ml States, and to the President of the Senate 
and the Speaker of the House of Representatives of the Congress 
of the United States. 

The fpiestion submitted by you is whether or not a convention, 
composed as contemplated by this resolution, would be a legal con- 
vention, and whether ratification or rejection of the propcjsed 
amendment by such assembly would be lepfally elToetive. 

The first (|uestion that naturally arises is whether t»r not a 
convention, so constituted, would conform to the purpose an<l in- 
tent of the congressioTud resolution jibove recited. I'pon this point 
it is prrt incut to note the InnLnniLre of the political platforms of 

Attorney General of Colorado 63 

the Democratic and Republican parties, respectively, adopted at 
their National Conventions of 1932, upon the subject of the Fed- 
eral amendment now proposed to be repealed. 

The Democratic plank is summarized as follows: 

"We favor the repeal of the Eighteenth Amendment. 
To effect such repeal we demand that the Congress immedi- 
ately propose a Constitutional Amendment to truly repre- 
sentative conventions in the states called to act solely on 
that proposal. We urge the enactment of such measures by 
the several states as will actually promote temperance, ef- 
fectivey prevent the return of the saloon and bring the 
liquor traffic into the open under complete supervision and 
control by the states." 

The "Republican plank provides, in part, as follows: 

''Such an amendment should be promptly submitted 
to the States by Congress, to be acted upon by State con- 
ventions called for that sole purpose in accordance with 
the provisions of Article V of the Constitution and ade- 
quately safeguarded so as to be truly representative.'* 
(See World Almanac, 1933, pages 923, 925.) 

There is a strong presumption that the Congress, in its reso- 
lution submitting the proposed amendment to the States for rati- 
fication or rejection, used the word ''convention" in the sense in 
which that word was used in the respective part}^ platforms of 
1932, and it is clear from the excerpts above quoted that both of 
the major political parties intended that the proposed repealinsr 
or modifying amendment of the Eighteenth Amendment should 
be ratified or rejected by conventions chosen by the people of the 
several states for that express purpose. 

It inevitably follows that the election of the members of a 
state convention by a state legislature, rather than by the people 
themselves, would be a perversion of the real meaning and intent 
of the congressional resolution, and this consideration alone suf- 
fices to raise a serious doubt as to whether a convention, constituted 
as provided by the Senate Joint Resolution, would be empowered 
to act. 

But this brings us to a much more fundamental question, the 
solution of which is, in our opinion, absolutely decisive of this 

Section 1 of Article V of the Federal Constitution provides, 
inter alia, that : 

"The congress, whenever two-thirds of both houses 
shall deem it necessary, shall propose amendments to this 
convention, or, on the application of the legislatures of 
two-thirds of the several states, shall call a convention for 

04 Biennial Report 

proposing amendments, which, in either case, shall be 
valid to all intents and purposes, as part of this consti- 
tution, when ratified by the legislatures of three-fourths 
of the several states, or by conventions in three-fourths 
thereof, as the one or the other mode of ratification may 
be proposed by the congress; * * *." 

Section 1 of Article VII reads as follows: 

''The ratification of the conventions of nine states 
shall be suflficient for the establishment of this constitu- 
tion between states so ratifying the same." 

We direct attention particularly to the clause in Section 1 
of Article V, which provides that proposed amendments shall be 
valid ''when ratified by the legislatures of three-fourths of ^he 
several states, or by conventions in three-fourths thereof." We 
respectfully submit that when the authors of the constitution pro- 
vided, in express language that proposed amendments thereof may 
be ratified by the legislatures of the several states, or by conven- 
tions in the several states, they intended to provide two separate, 
distinct and substantially difl^ercnt alternative modes or methods 
of ratification, otherwise the words "or by conventions in" the 
several states would be a mere idle gesture and that immortal docu- 
ment does not abound in idle gestures. 

Ratification or rejection by a convent i(ui elected by a state 
legislature would inevitably be to all intents and purposes rati- 
fication or rejection by the legislature itself, for the reason that 
the IcgishituiM" would, in all linman probability, elect delegates 
who would vote in accordance with its wishes. Thus, the so-called 
convention would not be an independent body, siu'h as the con- 
stitution obviously contemplated, but a mere echo of the will of 
the legislature. Nothing could be plainer than that such a con- 
vention would not afTorcl the alternative m(»thod of ratification or 
rejection expressly jirovided for by the plain terms of the Federal 
constitution, })ut would be ;i palpnble circumvention and Ix'trayal 
of the substantial purpose and intent of the National constitution. 

The argument, as I hnve been informed, has already been ad- 
vanced that the Philadelphia convention of 17S7. which framed 
the PNMleral constitution itself, was composed of delegntes selected 
by the lej^islatures of the several states, and that therefore an 
amendment thereto could be lawfully ratified or rejected by con- 
ventions selected by the .Hcn'cral state legislatures. Such an argu- 
ment is T>alpably unsound. In the first place, it will be noted that 
the rinlidelfihin eonvention was not assembled for the purpose 
of proposing a new constitution at all. It was assembled for the 
ex|)ress purpose only of amending and revising the articles of 
confe(ler;<< iotj This is .'imply provrd 1>\ fhr frrnis of flir rrsoln- 

Attorney General of Colorado 65 

tion of the Continental Congress, adopted February 21, 1787, which 
reads as follows: 

' ' Whereas there is provision in the Articles of Confed- 
eration and perpetual union, for making alterations there- 
in, * * * And whereas experience hath evinced that there 
are defects in th(; present Confederation, as a mean to 
remedy which, several of the States * * * have suggested 
a convention for the purposes expressed in the following 
resolution. * * * 

"Resolved, that in the opinion of Congress, it is ex- 
pedient, that on the second Monday in May next, a Con- 
vention of Delegates, who shall have been appointed by 
the several states, be held at Philadelphia, for the sole 
and express purpose of revising the Articles of Confedera- 
tion, and reporting to Congress and the several Legisla- 
tures, such alterations and provisions therein, as shall, 
when agreed to in Congress, and confirmed by the States, 
render the federal constitution adequate to the exigencies 
of Government, and the preservation of the Union." 

(See ''The Framing of the Constitution of the United 
States" by Max Farrand, page 28.) 

Moreover, it must be observed that the Philadelphia conven- 
tion did not undertake to promulgate or establish a constitution 
at all. Tt merely undertook to propose a constitution to be later 
ratified in the manner expressly provided by Article VII above 
quoted. In other words, the work of that convention was a mere 
proposal, rather than a ratification, just as the congressional reso- 
lution is a mere proposal and not a ratification of anything. The 
essential point to be inquired into is the manner in which the con- 
stitution itself was ratified, not the manner in which it was pro- 
posed, and it is utterlj^ without significance that the constitution 
was proposed by delegates chosen by the legislatures of the sev- 
eral states. Article VII provides that the constitution shall be 
ratified by conventions in the several states and it will be pre- 
sumed that the word "convention" in Artice VII has the same 
meaning and significarice as the word "convention" in Article V, 
for, it is a fundamental rule of statutory and constitutional con- 
struction that a particular technical term used therein has the 
same significance wherever it appears, unless the context clearly 
indicates otherwise. This proposition, as is well known, could be 
supported by abundant authorities. 

What, then, was understood to be the significance of the word 
"convention," as used in Article VII as well as in Article V? 
We turn to the history of the times for the answer to this ques- 
tion, and that answer is conclusive of this inquiry. We find that 
every one of the thirteen states, which finally ratified the Federal 
constitution, did so through the medium of conventions chosen 

66 Biennial Report 

directly by the people of the respective states, rather than through 
the medium of their several legislatures, and that such was the 
intention of, the makers of the constitution is, as already pointed 
out, clearly indicated by the proceedings of the Philadelphia con- 
vention. Thus, it appears that on May 29th, 1787, Delegate John 
Randolph of Virginia proposed the following resolution : 

''The amendments which shall be offered to the Con- 
federation by the Convention ought at a proper time or 
times, after the approbation of Congress, to be submitted 
to an assembly or assemblies of Representatives recom- 
mended by the several Legislatures, to be expressly chosen 
by the people, to consider and decide thereon." 

And on July 23rd following, that resolution was adopted 
after a resolution proposed by Delegate Ellsworth of Connecti- 
cut had been voted down. See ''The Making of the Constitution" 
by Charles Warren, pages 346-350. And as plainly manifested, 
each of the states ratified by conventions chosen by the people 

"When the Constitution was actually submitted to 
the .State Conventions for ratification in 1787-1788. the 
State Legislatures voted in Massachusetts, Pennsylvania, 
Delaware, Maryland, North Carolina, South Carolina and 
Georgia, that persons qualified to vote for members of 
the lower House of the Legislature might vote for mem- 
bers of the Convention ; in New York, the straight prin- 
ciple of manhood suffrage was adopted in the election of 
delegates to the ratifying convention; in Connecticut, 
those 'qualified by law to vote in the town meetings' could 
vote for members of the Convention : in New TLnmpshire. 
the duly (jualified voters for mcMubers of the lower House, 
together with certain additional classes. See .l/» Ecotmmic 
Intrrprrtntion of the Coiiatitniwn (1018) bv Charles A. 
Beard, 240-242. 

"In Virginia, the Assembly voted, Oct. 25, 1787: 
'Resolved that every citizen being a freeholder in this 
Commonwealth be eligible to a sent in the Convention, 
and that the people, therefore, be not restrained in their 
elioi(e of delegates by any of those legal or constitutional 
restrictions which confine them in their choice of Members 
of tlie Legislnture*. " 

See .same Volume, paffc 352; 

Also liryee's American Commonwenlth. Ch. 3. Part 1 ; 

Klliott's Debntes on tlw V.-l.r:,! rniwlllntinn pngc 


Tliere is another well known fumlanieiitMi nih' of statutory 
;i'm1 cniistitiit I(in;il cnMstruction- tli.if wluTc flip meaning of a term 

Attorney General of Colorado 67 

used in a statute or constitution is in doubt the construction ac- 
corded thereto at or about the time the statute or constitution 
was adopted is of the utmost importance — and we have amply 
shown bj^ contemporaneous history that the term "convention," 
as used in Articles V and VII, was understood to mean a body 
altogether independent of a state legislature, and in fact a body 
composed of members chosen by the people themselves. 

No proposed amendment to the Federal constitution has ever 
been before submitted to conventions in the several states rather 
than to the legislatures themselves, and we, therefore, are with- 
out further precedent to guide us, and the precedent established 
by all the states in ratifying the original document is, therefore, 
as we submit, entirely conclusive of this controversy and affords 
the only lawful and proper course to be followed in the present 
instance. The cours? suggested, of choosing a mere rubber stamp 
convention, would be in such obvious contravention of constitu- 
tional intent, as shown by the language of the document itself in 
the history of the times, that it ought not to be tolerated or even 
seriously considered. 

Finally, it has been urged that ratification or rejection of the 
proposed amendment in the manner and form contemplated by 
the Senate Joint Resolution would be economical and result in 
the saving of expense to the taxpayers. In this behalf let it be 
observed that the congressional resolution itself allows seven years 
for ratification or rejection of the proposed amendment. A con- 
vention called and chosen in the manner contemplated by the con- 
stitution would not be unduly expensive. In view of the seven-year 
period allowed, no special session is essential. The Thirtieth Gen- 
eral Assembly, in regular session, could enact the necessary legis- 
lation for the calling of the convention and the election of members 
thereof. The members could be elected at the General Election 
in 1936, and naturally, the convention could assemble and con- 
clude its labor within a brief time thereafter, and the whole matter 
could be concluded long before the seven-year period allowed by 
Congress shall have elapsed. 

Respectfully yours, 


Attorney General. 

First Assistant. 


To Omer T. Mallory, Feb. 27, 1933. 
Teachers* salaries. 

1. If teacher enters into a contract for a monthly salary less 
than that provided by statute, the contract is valid and the teacher 

68 Biennial Report 

cannot recover against the district for any further amount on 
account of the minimum salary act. 

2. If a district hires a teacher for less than the minimum 
salary provided by law, the benefit would inure to the county gen- 
erally rather than to the school district itself, and the result would 
be that in making the apportionment for the following year, the 
surplus saved would be taken into consideration and the district 
would receive less out of the general county school fund. 

24 GOVERNOR— (Special Sessions of General Assembly) 

To Governor Johnson, March 6, 1933. 
Special sessions. 

The governor may, on extraordinary occasions by proclama- 
tion, convene the General Assemblv in special session (Colo. Const., 
Sees. 7, 9, Art. IV) : 

He is the sole judge of what is an "extraordinary occasion;" 
but he manifestly could not call a special session upon the day 
and hour set for the regular session, nor during the first fifteen 
days of the regular session (9 Colo. 642; 19 Colo. 333: 56 A. L. 
R. 706) ; 

Could call a special session during recess of general session ; 

Only such business as is named in the proclamation can be 
transacted, at such special session. (Const. Art. V, Sec. 19; 126 
Fed. 317.) 


To Thomas Annoar, March 7, 1933. 

Warrants issued during Bank Moratorium. 

Warrants drawn by the State Compensation Insurance Fund 
upon the State Treasurer during the present banking moratorium, 
would be entirely valid and negotiable in the ordinary course of 
trade, and would without doubt be accepted for deposit upon the 
opening of banks for business, or for exchange for clearing house 
certificates or other form of temporary circulating medium. 

2. The State Treasurer wouhl be fully authorized to cash 
such warrants if funds are available. 

3. There is no rea.son why the Compensation Fund should not 
continue to issue such warrants (hiring the present moratorium. 


To L. I. Dawson, March 8, 1933. 

PaKial paymenU. 

A taxpayer may pay taxes on separately assessed property, 
or may pay (lifTcrcnt taxes, such as a tax on re/illy or n tax on 

Attorney General of Colorado 69 

personalty, but he may not require a division of either the prop- 
erty or the tax. 

Sec. 1253, Cooley on Taxation ; 

Opinion No. 19, p. 65, Kept. Atty. Gen'L, 1929-30. 

27 TAXATION— (Natural Gas Pipelines) 

To Albert LaFollette, March 14, 1933. 
H. B. 561 — Unconstitutional. 

1. Pipeline companies conveying natural gas from one state 
to another are engaged in interstate commerce. A tax sought to 
be imposed on such a company would constitute an unwarranted 
regulation of interstate commerce; and a bill providing for such 
a tax would be unconstitutional. (266 U. S. 555; 280 U. S. 338; 
283 U. S. 465 ; P. U. R. 1928D, 507 ; P. U. R. 1928E, 728 ; P. U. R. 
1928A, 830; P. U. R. 1929B, 330.) 

2. Such tax would be an expense of operation and could, and 
probably would, be passed on to the consumer. 


To Governor Johnson, March 14, 1933. 
Reapportionment Act, voted at General Election. 1932. 

1. '*The veto power of the governor shall not extend to meas- 
ures initiated by or referred to the people," and failure of the 
governor to proclaim the adoption of such a measure could not 
affect its constitutionality. The Act is constitutional, 

2. The General Assembly may amend or repeal initiated 

3. Inasmuch as the initiated act of 1932 effected a valid 
and constitutional reapportionment, but inasmuch as no state or 
federal census has intervened since such reapportionment was made 
(as required by Sees. 45 and 46, Art. V, Const.), the 29th Gen- 
eral Assembly is without power to effect a new reapportionment. 

4. The courts hold that minor discrepancies and imperfec- 
tions in a reapportionment act do not invalidate it where consti- 
tutional requirements are substantially complied with. (Citing 
People V. Thompson, 155 111. 477.) 

March 14, 1933. 
Hon. Edwin C. Johnson, 
Governor of Colorado, 
Capitol Building, 
Denver, Colorado. 
Dear Governor: 

You have directed our attention to the initiated act adopted by 
the people at the last November general election entitled ' ' AN ACT 

70 Biennial Report 

RADO," and have requested onr opinion upon the following ques- 
tions : 

1. Is the initiated reapportionment measure adopted 
by the people at the last General Election constitutional 
and was such measure properly enacted ? 

2. Can the General Assembly repeal or amend ini- 
tiated measures? 

8. Can the Twenty-ninth General Assembly reap- 
portion Colorado? 

Sections 45 and 46, respectively, of Article V of the State 
Constitution read as follows: 

"Sec. 45. The general assembly shall provide by law 
for an enumeration of the inhabitants of the state, in the 
year of our Lord 1885, and every tenth year thereafter; 
and at the session next following such enumeration, and 
also at the session next following an enumeration made by 
the ruthority of the United States, shall revise and ad.iust 
the apportionment for senators and representatives, on the 
basis of such enumeration according to ratios to be fixed 

**Sec. 46. The senate shall consist of twenty-six and 
the house of representatives of forty-nine members, which 
number shall not be increased until the year of our Lord 
one thousand eight hundred and ninety, after which time 
the general a.ssembly may increase the number of senators 
and representatives, preserving as near as may be the pres- 
ent proportion as to the number in each house; Provided, 
That the aggregate number of senators and representatives 
shall never exceed one hundred.'' 

The first apportionment of senators and r« iiroscntaiivt's in the 
General Assembly was provided by the Constitution itself in Sec- 
tions 48 nnd 49 of the same Article. 

Since the adoption of the Constitution the General Assembly 
ha.s, from time to time, enacted laws providing for reapportionment. 
Those statutes are published as follows: Session Laws of 18S1. 
page 20; Session Laws of 1891, page 22; Session I^aws of 1901, 
Chapter 2, page 20 (amended by Session Laws of 1909, Chapter 
lf)M) ; Session Laws of 1918, Chapter 181. pane 519. OnnoTi-litl by 
Session Laws of 1917, Chapter 111). 

It will be observed tluit Section 4"). aliove quoted, prn\ nirs. in 
substance, that reapportionments shall be made at "the session next 
following" the takinir of each State (>r Federal ei-nsus. nnd this at 
once raises the (piestion as to whether or n»>t n reapportionment ean 

Attorney General of Colorado 71 

lawfully be effected by an initiated measure rather than by an Act 
of the General Assembly. Our initiative and referendum provision 
was written into the Constitution in 1910 as an amendment to Sec- 
tion 1 of said Article V. That amendment provides, in general 
terms, that the people may initiate laws and constitutional amend- 
ments, but makes no specific reference to the matter of reappor- 
tionments for senators and representatives in the General Assembly. 
It might, therefore, be contended that the initiative amendment of 
1910, which is couched in general terms, did not have the effect of 
amending or modifying said Section 45, which specificalh^ reposes 
the power of reapportionment in the General Assembly itself. How- 
ever, this matter is, we think, definitely determined by a recent 
decision of the Supreme Court of the State of Washington. 

Section 1 of Article II of the constitution of that State, as 
originally adopted, provides for a state senate and house of repre- 
sentatives which shall be known as the ' ' Legislature ' ' Section 3 of 
the same Article provides that "the legislature shall" at the next 
session after each census "apportion and district anew the members 
of the senate and house of representatives, according to the number 
of inhabitants * * *." 

In 1912, said Section 1 of Article II of the Washington Consti- 
tution was amended by providing an initiative and referendum 
system verj^ similar to our own. It will thus be seen that the sit- 
uation in Washington, so far as constitutional provisions are con- 
cerned, is strikingly similar to that which exists in Colorado, for in 
Washington, as here, the original Constitution expressly provided 
for periodical reapportionments by the legislative department, and 
in Washington, as here, an initiative provision, in general terms, 
was afterwards written into the State Constitution. 

In State ex rel. Miller v. H inkle, 156 Wash. 289, it appears 
that in 1930 a petition to initiate a reapportionment law was ten- 
dered for filing in the office of the Secretary of State of the State 
of Washington. The Secretary of State refused to file such petition 
and an action in mandamus was brought by the sponsors of the 
petition to require it to be filed. The contention was advanced by 
the respondent Secretary of State in that case that he was not re- 
quired to file the petition because, as he alleged, a reapportionment 
law could not lawfully be adopted under the initiative provisions of 
the Washington Constitution. The result was an original action in 
mandamus brought in the Supreme Court of the State. The court 
held that a reapportionment measure is a "law" within the meaning 
of the initiative provision of the Washington Constitution and that, 
therefore, the people, acting under such provision of their constitu- 
tion, had concurrent power with the legislature of the State to effect 
a reapportionment of the members of the legislature of the State. 
We find no court decision contrary to the doctrine of this AVashing- 
ton case, and in view of the close parallel between the provisions of 

72 Biennial. Report 

the Washin^on Constitution and that of this State, we regard the 
above decision as conclusive. 

In your first question, you also ask our opinion as to whether 
or not this initiated measure was properly enacted. We assume that 
upon this point you have in mind the suggestion which has been 
made that the measure was not properly enacted, because of the 
failure of his Excellency, Governor Adams, to proclaim its adop- 
tion. Our initiative amendment provides, inter alia, that : 

*'A11 elections on measures referred to the people of 
the state shall be held at the biennial regular general elec- 
tion, and all such measures shall become the law or a part 
of the constitution, when approved by a majority of the 
votes cast thereon, and not otherwise, and shall take effect 
from and after the date of the official declaration of the 
vote thereon by proclamation of the governor, but not later 

than thirty days after the vote has been canvassed. 
• • •>> 

It will be observed that the Constitution declares that initiated 
measures shall become the law **not later than thirty days after the 
vote has l)een canvassed.*' As already suggested, the Governor 
failed, in this instance, to issue the usual proclamation of the result 
of the canvass of the votes on this measure, but in view of the clause 
last quoted to the effect that initiated measures shall become laws 
not later than thirty days after the completion of the official can- 
vass, we are firmly of the opinion that no proclamation of the Gov- 
ernor was es.sential. In fact, any inference that an initiated law 
voted by the people would fail, because of the default or failure of 
the Governor in this respect, is so revolting to reason and common 
sense that we do not deem it necessary to search for judicial deci- 
sions in support of our conclusion. In fact, the initiative provision 
itself further provides that "the veto power of the governor shall 
not extend to measures initiated by, or referred to the people." 
This provision proves beyond the slightest (piestion that the Gov- 
ernor could not V(»to an initiated measure either by an affirmative 
act or by failure or refusal to proclaim its adoption. 

In your second question, you ask whether or not the General 
Assembly can repeal or amend initiated measures. This question 
has been definitely answered by our Supreme Court in lit re Snintc 
Rfftoluilwi No. •/, 54 Colo. 2C)2, where it was licld that the fJeiieral 
Assembly can repeal initiated measures The (|uestion of whether 
or not the General Assembly ean amend i?iitiat«»d mejjsnres was not 
expressly submitted to or decided by the court. Uut tlie logic of 
the opinion leads inevitably to the conchision that the General 
Assembly may amend, as well as repeal, initiated measures. Rut nt 
this point it must be observed that the pre<Msr matter here under 
ronsi<lerntion was by nc means determined by the decision last cited. 
That (leeiHion makes no reference to reapportionment laws. It sim- 

Attorney General of Colorado 73 

ply decides the general question that initiated measures may be re- 
pealed by the General Assembly, and this observation brings us to 
your last question which is: ''Can the Twenty-ninth General As- 
sembly reapportion Colorado"? 

Section 45 of Article V, above quoted, imposes a mandate upon 
the General Assembly to reapportion senators and representatives 
at the ''session next following" each State or Federal census. But 
this does not limit the power of reapportionment to the one session 
next following a census. The mandate of this section is a con- 
tinuing one until it has been constitutionally obeyed. Our Supreme 
Court has, in effect, so declared. 

Thus in 1885 a state census was taken. The General Assembly 
of 1887 failed to enact a reapportionment law. The General Assem- 
bly of 1889 requested the opinion of the Supreme Court as to 
whether or not it had power to enact a reapportionment law in view 
of Section 45, above quoted, which, in effect, commanded the Gen- 
eral Assembly, convening next after the census of 1885, to enact a 
reapportionment law. The court, in answering the question sub- 
mitted, said: 

"The statutes containing no act adopted since the year 
■ 1885, relative to the matter submitted, we answer the ques- 
tion propounded affirmatively." 

(See In re Legislative Apportionment , 12 Colo. 186). 

But we are now confronted with an entirely different situation, 
for we have already held that the initiated act of 1932 is consti- 
tutional and therefore effects a valid reapportionment. It will be 
noted that the Supreme Court in the case last above cited held that 
a reapportionment could be made at the second session after the 
taking of a census, but the court, in its very brief opinion, pointed 
out that no reapportionment had already been made after the census 
had been taken. Thus the opinion raises a clear implication that if 
the General Assembly had made a reapportionment at its 1887 ses- 
sion, it could not make a new reapportionment at its 1889 session. 

Moreover, courts of other states in construing constitutional 
provisions very similar to our Section 45 above quoted have uni- 
formly held that after a reapportionment has been effected follow- 
ing a census, no reapportionment can lawfully be made until an- 
other census has been taken. 

We first quote from the article on ''States," 59 Corpus Juris, 
Section 44, page 78 : 

"The time of apportionment is usualh' provided so 
that it shall be made at the first or next session of the legis- 
lature after an enumeration of the inhabitants of the state. 
and such a provision prescribing the time of making an 
apportionment impliedly prohibits an apportionment at 
any other time ; and when a valid apportionment has been 

74 Biennial Report 

made, no new apportionment can be made until the expira- 
tion of the prescribed period ; in other words, an appor- 
tionment law can be validly passed only once for each enu- 
meration period. * * *" 

Section 6 of Article IV of the Illinois Constitution of 1870 
reads, in part, as follows : 

"The General Assembly shall apportion the State 
every ten years, beginning with the year 1871, by dividing 
the population of the State, as ascertained by the Federal 
census, by the number 51, and the quotient shall be the 
ratio of representation in the Senate. * * *" 

The Supreme Court of that State in People v. Hittchinson, 172 
111. 486, 503, said: 

a* ♦ # That power (reapportionment) and dis- 
cretion, when fully exercised, were exhausted, and the 
power will not again arise until the conditions provided for 
in the constitution shall again exist." 

And further at page 504: 

a* * # r^YiQ power to make apportionments has 
not always been exercised at exact periods of ten years, 
but the power conferred by the constitution is a continuing 
one from the time it is constitutionally devolved upon the 
legislature until it is performed." 

In People v. Carlork, 198 111. 150, 154, the court said : 

"* • * When a valid apportionment has once 
been made it must stand until after the making of the next 
enumeration by the Federal authorities." 

Section 6 of Article IV of the Constitution of California reads, 
in part, as follows: 

<<• • • 'Yho census taken under tlie direction of 
the Congress of the United States, in the year one thousand 
eight hundred and eighty, and every ten years thereafter, 
shall ])c thr basis of fixing and adjusting the h'gislative 
districts; and th.' legislature shall, at its first session after 
each ceTnis, adjust such <listriets and r<'aj)j>ortion the rep- 
reserMation so us to preserve them jis ne;irly «Mjual in popu- 
lation 88 may be. ' ' 

In Dowcll V. McLves, 199 Cal. 144, 146, the eourl said: 

"Under that section, which is mandatory and pro- 
hibitory, the power to form legislative <listriets ean be ex- 
ercised but onee during the pericxi between one United 
States census and the su«*eee<ling om*. " 

Attorney General of Colorado 75 

(See also to the same effect Wheeler v. Herbert, 152 Cal. 224, 

The above court decisions are so precisely in point that we are 
led thereby to the same conclusion that inasmuch as the initiated 
act of 1932 effected a valid and constitutional reapportionment, and 
inasmuch as no State or Federal census has intervened since such 
reapportionment was made, the Twenty-ninth General Assembly is 
wholly without power to effect a new reapportionment. 

A related matter, not specifically included in your questions, 
remains to be considered. 

Section 47 of Article V of the Constitution reads as follows : 

"Senatorial and representative districts may be 
altered from time to time, as public convenience may re- 
quire. When a senatorial or representative district shall 
be composed of tv/o or more counties, they shall be contigu- 
ous, and the district as compact as may be. No county 
shall be divided in the formation of a senatorial or repre- 
sentative district," 

We note that under this section senatorial and representative 
districts may be altered from time to time, as public convenience 
may require, but the mere alteration of districts is a far different 
matter from effecting a reapportionment. Plainly enough, a reap- 
portionment, as provided for by Sections 45 and 46, embraces sev- 
eral distinct factors: (a) determination of the number of senators 
and representatives, respectively; (b) the fixing of the ratios for 
the revision and adjustment of the apportionment of senators and 
representatives; and (c) the delineation of the boundaries of the 
respective senatorial and representative districts. 

That there is a substantial and vital distinction between reap- 
portionment as provided for by Sections 45 and 46, and alteration 
of senatorial and representative districts as permitted by Section 
47, is made still more apparent by the fact that Section 45 provides 
that at fixed times the apportionment may be revised and adjusted 
according to determined ratios, while Section 47 merely provides 
that districts may be altered. And still further, it will be noted 
that the reapportionment commanded by Sections 45 and 46 is to 
be made at the session next following each State or Federal census, 
while the alterations allowed under Section 47 may be made not at 
fixed or stated periods, but from time to time as public convenience 
may require. 

From all this, it is entirely obvious that the alterations per- 
mitted under Section 47 were intended to be but minor readjust- 
ments in district boundaries, as conditions change and public con- 
venience may require by reason of such changing conditions. Any 
other construction of Section 47 would result in nullifj^ing and ren- 
dering futile the plain mandatory provision of Sections 45 and 46. 
In short. Section 47 does not authorize reapportionments to be made 

76 Biennial Report 

at any other time or in any other manner than is specifically pro- 
vided for by Sections 45 and 46. 

We find that upon one occasion the General Assembly altered 
certain senatorial and representative districts after a reapportion- 
ment had been duly made and before the taking of the succeeding 
census. This was effected by the amendatory act of 1909 above 
referred to. That that statute purports to be based upon Section 
47 is apparent from its title which recites that tho purpose of the 
act is to "alter" the senatorial and representative districts and to 
amend certain sections of the reapportionment act of 1901. (See 
Session Laws of 1909, page 474). The amendatory act of 1917, 
above referred to. merely clarifies one section of the reapportion- 
ment act of 1913. 

We are not now, of course, called upon to express our opinion 
as to the validity of the act of 1909, but we do not hesitate to say 
that it effected such vital and far-reaching changes in the reappor- 
tionment of 1901 that it is possible, to say the least, that its consti- 
tutionality might have been successfully challenged. 

It hardly need be observed that opinions of this department 
upon legal questions are not final and that your questions as to con- 
stitutionality of the initiated act of 1932 and as to the right of the 
Twenty-ninth General Assembly to enact a reapportionment meas- 
ure can be finally determined only by our Supreme Court. 

Section 3 of Article VI of the Constitution provides, in part, 

"• * • The supreme court shall give its opinion 
upon important questions upon solemn occasions when re- 
quired by the governor, the senate, or the house of repre- 
sentatives; and all such opinions shall be pubished in con- 
nection with the reported decisions of said court." 

ITowever, the Court has held that it is the sole judge of what 
is an "important question" and a "solemn occasion." (See Tn re 
Interrocffiion'es of the House of Rr present aiives, 62 Colo. 188). 

Before dismissing this subject a further observation should, 
perhaps, be made. The initiated act of 1932 follows the general 
plan and outline of the reapportionment acts of 1891. 1901 and 
1913, respectively. And, like these former statutes, it provides that 
nothing therein contained "shall be construed to work the removal 
of any senator from his office for tho term for which he may have 
been elected." It is obvious that where a reapportionment meas- 
ure seeks to accompli-sh the dual object of preserving intact exist- 
ing terms of state senators and also of effecting a new apportion- 
ment of senatorial and representative districts, somewhat incon- 
gruous and anomalons results will inevitably exist in particular 
instancrs p<'n<ling the lapse of the current terms of so-called 
"lioldover" senators. 

Attorney General of Colorado 77 

But the courts hold that minor discrepancies, inconsistencies 
and imperfections in a reapportionment act do not invalidate it 
where constitutional requirements were substantiallj^ complied with. 
Thus we quote from People v. Thompson, 155 111. 477, where the 
court said : 

a* * * jj^ other words, if it clearly appeared that 
in the formation of any district the requirement of com- 
pactness of territory and equality in population had been 
wholly ignored, had not been considered or applied at all, 
to any extent, then the statute would be clearly unconsti- 
tutional. But if it had been considered and applied, 
though to a limited extent only, subject to the other more 
definitely expressed limitations, then the General Assembly 
has not transcended its power, although it may have very 
imperfectly performed its duty, and the act is valid." 

Respectfully submitted, 


Attorney General. 
Assistant Attorneys General. 

29 CITY OFFICERS— Terms of 

To G. S. Cosand, March 15, 1933. 
H. B. No. 664, 1933. 

Section 1 of H. B. 664 does not affect the term of any alder- 
man heretofore elected under the laws of 1925 for a 4-year term. 
(S. L. 1931, Ch. 171.) 


To Land Board, March 15, 1933. 
Aspen refunding bonds. 

The bonds of the City of Aspen issued to pay defaulted cou- 
pons on refunding bonds of that city, are a valid and binding 

Citing Sees. 9177-9178, C. L. 1921 ; 
Hayden v. Aurora, 62 Colo., 563. 
The issue of the Refunding Bonds of the City of Aspen in 
the amount of $71,000, dated July 1, 1931, constitute a valid and 
binding obligation on the City of Aspen. (Sees. 9185-9189 C. L. 
21; 68 Colo. 244; 48 C. J. 624.) 


To Prank Farley, March 16, 1933. 

Sec. 3703, C. L. 1921 prohibiting advertising intoxicating 
liquors remains in force until June 30, 1933. 

78 Biennial. Report 

32 LEGISLATION— (State Employes) 

To A. B. Hirschfeld, March 16, 1933. 

Employment of married women and their husbands by the State. 
The bill is against public policy and violative of state and 
federal constitutions. 

Citing Art. Xli, Sec. 13, Colo. Const.; (Civil Service) 
Sec. 11, Art. II, Colo. Const.; (Contracts) 
Hessick v. Moynihan, 33 Colo. 43, 63, 262 Pac. 907. 
Federal Const. 14th Amendment (equal protection) 
Watson V. Marvland, 218 V. S. 173, 178 (o-i L. Ed.) 
Keefe v. People, 37 Colo. 317, 321. 
People V. Chrane, 214 N. Y. 154, 167-68. 

March 16, 1933. 
Representative A. B. Hirschfeld, 
State Capitol, 
Denver, Colorado. 

Subject : Question as to constitutionality of House BUI No. 215. 
Dear Mr. Hirschfeld : 

You have orally requested my opinion as to the constitution- 
ality of House Bill No. 215, a copy of which you have submitted to 
me together with a brief that has been prepared in support of its 

I have given careful consideration to this proposed measure, 
and to the brief intended to be in its support ; and 1 am compelled 
to saj', after an extended investigation of the authorities, that, in 
my opinion, the bill conflicts with our State and Federal Constitu- 
tions in the following respects: 

(1) The hill wouJd violate Section IS of Article All of ou^r 
State Constitution, rc1atin{) to the classified civil, sennce. 

This section of our State Constitution provides, among other 
things, as follows: 

"Appointments and employments in and promotions 
to offices and places of trust and employment in the classi- 
fied civil .service of the state .shall be made according to 
merit and fitness, to be a.scertained by competitive tests of 
competence, the person a.scertained to be the most fit and 
of thf highest excellence to be first appointed. All ap- 
pointees shall be qualified electors of the State of Colorado, 
except as to those offices or positions held by the civil serv- 
ice commission to require special training and technical 
qualifications, in which cases competitive tests need not be 
limited to qualified electors and may be held without tlie 
state. • • .• 

"Persons in the classified service shall hold their re- 

Attorney General of Colorado 79 

spective positions during efficient service. * * * They 
shall be removed * * * only upon written charges. 

"Laws shall be made to enforce the provisions of this 
section. * * * 

"All persons holding positions in the classified service 
as herein defined when this section takes effect shall retain 
their positions until removed under the provisions of the 
laws enacted in pursuance hereof." 

Notwithstanding these mandatory provisions of Section 13 of 
Article XII, as just quoted, and in plain conflict therewith, Section 
1 of House Bill No. 21 5 provides as follows : 

"No married woman, with or without the consent of 
her husband, shall have the right, power or authority to 
perform any work, labor or services for compensation or 
salary for the State of Colorado or any of its offices, de- 
partments, bureaus, boards, commissions, institutions or 
other agencies, or for any county, city and county, city, 
incorporated town or school district, unless such married 
woman is the head of a family, as is now provided by law 
for tax exemption purposes, and/or by reason of the dis- 
ability of her husband, she provides the chief support of 
the family." 

It is apparent thai Section 1 of House Bill No. 215 is in con- 
flict with Section 13 of Article XII of the State Constitution, re- 
lating to the State's classified civil service, in the following partic- 
ulars, viz. : 

(a) Section 13 of Article XII plainly contemplates that "ai/ 
qualified electors^' of the State of Colorado shall be eligible to ap- 
pointment and employment in the classified civil service, ("except 
as to those offices or positions held by the Civil Service Commission 
to require special training and technical qualifications, in which 
cases com^petitive tests need not be limited to qualified electors and 
may be held without the State") ; while Section 1 of House Bill No. 
215 would prohibit any married woman, although a qualified electar, 
from such appointment and employment unless she be the "head of 
a family," as therein defined, and, by reason of the disability of 
her husband, "the chief support of the family." 

(b) Section 13 of Article XII provides that appointments 
and employments in the classified civil service "shall be made ac- 
cording to merit and fitness, to be ascertained by competitive tests 
of competence, the person ascertained to be the most fit and of the 
highest excellence to be first appointed"; while Section I of House 
Bill No. 215, in so far as it would relate to married women, would 
qualify and restrict such Constitutional provision by requiring that 
any married woman so ascertained to be the "most fit and of the 
highest excellence" must also be the "head of a family," etc., as 

80 Biennial Report 

therein provided. In other words, although a married woman might 
be found to be the most fit for a position under the classified eiv\\ 
service, after a competitive test of competence, she would be denied 
her Constitutional right to be the first appointed thereto by Section 
1 of House Bill No. 215 unless she were the "head of a family," etc. 
In this connection it is to be noted that our Supreme Court has held 
that the appointment of a person not standing highest on the list 
of persons eligible for such appointment is void. People ex rel. v. 
Ca^ (1916), 61 Colo. 396, 403, 158 Pac. 143. 

(c) Section 13 of Article XII provides that persons in the 
classified civil service shall hold their respective position "during 
efficient service," and shall be removed only upon written charges; 
while Section 1 of House Bill No. 215, in so far as it would affect 
married women in the classified civil service, Avould require their 
summary discharge, no matter hoAv experienced, capable and effi- 
cient, unless they were also heads of families as therein required. 

(d) Section 13 of Article XII specifically requires that laws 
shall be made to enforce its provisions, while House Bill No. 215 
would, if enacted into law, tend to defeat the provisions of that 
section of our State Constitution and restrict the application thereof. 

To the extent, therefore, that House Bill No. 215 would exclude 
married Avomen, who are not the heads of families as therein pro- 
vided, from appointment and employment in the State's classified 
civil service, it is plainly unconstitutional as being in obvious con- 
flict with the provisions of Section 13 of Article XTT of the State 
Constitution, siipra, 

(2) Ifoiise Bill No. SIT) waitld violate the prorisiofis of the 
State arul Federal Constitutions irlntivp to the itnpairnutit of eon- 

In the bill of riglits of our State Constitution it is provided in 
Section 11 of Artice II thereof: 

"That no * • • law impairing the obligation of 
contracts, or retrospective in its operation • • • shall 
be pa.s.scd by the General Assembly"; 

and Section 10 of Article I of the Federal Constitution provides as 

"No state shall • • • pass any • • • l.nv 
impairing the obligation of contracts." 

Without rrgard to these inhibit ious of the Stnto and FtMh-ral 
('onstitutions the enactment of any law impairing the obli- 
gation of contracts, the provisions of House Bill No. 215 would not 
only impair, !)ut would by the express terms of Section 3 thereof 
also render "null and vftid,*' the obligation of all existing contracts 
of employment betwef»n the "State of Colorailo or any of its offices, 
dcpartUKMits, bureaus, boards, commissions, institution.s or other 

Attorney General of Colorado 81 

agencies," and married women who are not the heads of families, 
as defined in said Bill, as well as the obligation of all existing con- 
tracts of employment between ''any county, city and county, city, 
incorporated town or school district" and married women who are 
not likewise the heads of families as defined in said Bill. 

In considering existing contracts of employment between the 
State and any married women who are not the heads of families, 
it is also to be noted that our Supreme Court has held : 

<<# * # ^ provision contained in the statute 
adopted by one legislature may, when accepted and acted 
upon by a private citizen * * * result in a contract 
which succeeding legislatures are powerless to repudiate." 
C Italics mine). 

Hessick v. Moynihan (1927), 83 Colo. 43, 63, 262 Pac. 907. 

Now, all of the existing contracts of employment aforemen- 
tioned, which would be thus rendered ''null and void" as expressly 
provided by said House Bill No. 215, plainly come within the pro- 
tection of our State and Federal Constitutions against impairment 
by State legislation. In Hessick v. Moynihan., supra, our Supreme 
Court said (83 Colo., at page 60) : 

"The Constitutional provision against the impairment 
of obligations of contracts protects from violations the con- 
tracts of States equally with those entered into between 
private individuals"; 

and, manifestly, the same provision, as found in both our State and 
Federal Constitutions, protects from violations the contracts of 
"any county, city and county, city, incorporated town or school 
district. ' ' 

So, too, as said by our Supreme Court in Hessick v. Moynihan, 
supra, (86 Colo., at pages 63-64) : 

"* * * It is as highly essential that a State, or 
those lawfully acting under its authority, shall be held to 
an honorable performance of their legal obligations as is 
required of private persons"; 

and the same language is, of course, equalh^ applicable to "any 
county, city and county, city, incorporated town or school district," 
or to those lawfully acting under the respective authority thereof. 

Yet Section 3 of said House Bill would make it a crime for 
those lawfully acting under the authority of the State and of the 
aforementioned political subdivisions thereof honorably to perform 
their respective legal obligations arising under existing contracts of 
employment with married women who are not heads of families 
within the definition of said Bill. 

So, also, therefore, to the extent that said House Bill would 
impair the obligations of such contracts of employment with mar- 

82 Biennial Report 

ried women who are not the heads of families, as therein defined, it 
would, manifestly, be violative of the provisions of both our State 
and Federal Constitutions, as above quoted. 

(3) House Bill No. 215 would also violate the Fourteenth 
Amendment to the Federal Constitution in that it ivould operate 
to deny to citizens of this State the equal protection of the laws. 

The clear mandate of the Fourteenth Amendment is that no 
state shall ''deny to any person wdthin its jurisdiction the equal 
protection of the laws." 

Under the provisions of House Bill No. 215 a small class of 
persons, viz., married women who are not heads of families and who 
are not providing the chief support of their several families by rea- 
son of th? disability of their respective husbands, — would be utterly 
excluded from employment by the State of Colorado or its political 
subdivisions aforementioned. 

In my opinion, this singling out of this small class of persons 
and this debarring them from employment with the State and its 
political subdivisions would be arbitrary and discriminatory in the 
following respects : 

(a) The exclusion of this small class of married women from 
service with the State and its political subdivisions would be based 
not upon any test of competency, but solely upon the question of the 
status of their domestic life. 

(b) In the classification of married women attempted to be 
established by the Bill, there is no intrinsic distinction whatsoever 
between those women available for employment and those women 
debarred from employment, which relates in the slightest degree to 
the nature of the employment itself, or to the character of the work 
to be performed, or to the fitness therefor of the individual. 

(c) The Bill, although leaving open the door for employment 
to married women whose husbands are disabled, nevertheless shuts 
the door to married women whose husbands are out of employment; 
between which groups ther(^ is obviously no ditference from an eco- 
nomic standpoint in their respective ]iccuniary needs. 

(d) The Bill debars from employment ])y the State and its 
political subdivisions married iixymen whose husbands are employed, 
l)ut does Twt debar therefrom married mf-n whose wives may be em- 

(e) Wliile there may l)e, and doubt h-ss nre, instances, whieli 
appear gbiring in this time of wi<lespread nnjMnployment of married 
women in the service of the State and its political subdivisions whose 
hnsbands are also proiitably employed, yet these instances, after all, 
comprise only a small class of persons against whom di.scrimination 
cannot be justified upon tlie mvvv i?rou!nl of economic expediency. 

It tlierefore aj)pears that the ela.ssifieation <M)nleinplated by 
House r.ill No. 215 i.s faneiful an<l arbitrary, and that no substan- 
tial or logical basiH exists therefor. 

Attorney General of Colorado 83 

The Bill plainly imposes an arbitrary test of competency for 
positions with the State and its political subdivisions, in derog:ation 
of the rights of persons otherwise qualified to fill such positions and 
thereby denies to them the equal protection of the laws. 

The Supreme Court of the United States has laid down the test 
of a classification for legislative purposes, as follows : 

ttm * « * rpj^g classification of the subjects of such 
legislation, so long as such classification has a reasonable 
basis and is not merely arbitrary selection without real dif- 
ference between the subjects included and those omitted 
from the law, does not deny to the citizen the equal protec- 
tion of the laws." Watson v. Maryland (1909), 218 U. S. 
173, 178, 54 L. Ed. 987. 

It is my opinion that the classification provided by House Bill 
No. 215 does not meet this test, in that no reasonable basis appears 
for it and that it amounts to merely arbitrary selection without 
real difference between the subjects thereof. 

Of course, it is a familiar rule that the State, in its proprietary 
capacity, may properly prescribe for itself and its subordinate 
political organizations the terms and conditions on which work of 
a public nature may be done. Keefe v. People, 0906), 37 Colo. 317, 
321, 87 Pac. 791, 8 L. R. A. (N. S.) 131. 

But here, again, the rule is subject to the Constitutional limi- 
tation that the State may not make arbitrarv distinctions between 
its citizens. People v. Chrane, 214 N. Y. 154, 167-168, 108 N. E. 
427. As said by Judge Cordozo, (now Justice Cordozo of the United 
States Supreme Court), in the case just cited (214 N. Y., at page 

"It is true that the individual, though a citizen, has 
no legal right in any particular instance to be selected as 
contractor by the government. It does not follow, how- 
ever, that he may be disqualified from service, unless the 
proscription bears some relation to the advancement of the 
public welfare." (Italics are the court's). 

The proscription set up in House Bill No. 215 against married 
women, simply because they do not happen to be heads of families 
as therein defined, does not appear to bear any relation whatso- 
ever to the advancement of the public welfare. On the contrary, it 
would militate against the public welfare by subordinating effi- 
ciency to requirements of economic expediency that are assumed to 

At the same time the Bill is opposed to the public policy of the 
State of Colorado, as expressed in Constitutional and legislative 
provisions, and in judicial decisions, enlarging the status of married 
women; and, if enacted into law, it would operate as an implied 
repeal of Section 5578, C. L. 1921, (giving to every married woman 

84 Biennial Report 

the right to perform any labor or services on her sole and separate 
account), to the extent that said Section 5578 applies to the labor 
and ser^dces performed for the State and its political subdivisions 
by married women who are not the heads of families within the 
terms of said Bill. 

While I fully appreciate your sincerity of purpose in the intro- 
duction of House Bill No. 215, yet it is mj^ opinion that the measure 
is violative of both our State and Federal Constitutions in the re- 
spects and to the extent hereinbefore pointed out. 
Respectfully submitted, 

Attorney General. 


To W. S. Meek, March 21, 1933. 


County treasurers are authorized to register school district 
warrants against the general school fund and such warants should 
be paid in the order of presentation. (Sec. 3780 C. S. 21). 

To Sen. Headlee, March 22, 1933. 

Purchase of motor vehicle plates by Secretary of State. 

Under Sec. 9, Ch. 122, S. L. lOlU, Secretary of State is author- 
ized to purchase motor vehicle rep^istration number plates in the 
open market and under contract to the lowest and best bidder. 
(33 Colo. 94, 9057 C. L. '21; 25 Colo. App. 460; 23 Colo. 71.) 


To Geo. A. Miller, March 24, 1933. 

Appointment of clerk. 

Nowly appointed county judge cannot be recjuired to retain 
the clerk appointed by his predecessor. (Sees. 5802, 7924 C. L. 
21; 46 C. J. 964.) 


To Governor Johnson. March 25, 1933. 
H. B. 661 and 662— Constitutionality. 

House Hill G(I1 is un<'()iistitutionnl and IL B. 662 is unconsti- 
tutional except OR to prohibiting? sales to minors, etc. 

1. Are contrary 1o the Ki^hteenth Amendment of U. S. Consti- 
tution ntid tlirrffore void; 

Attorney General of Colorado 85 

A. Purport to permit and regulate that which the Constitution 
prohibits ; 

B. Legislatures can only enforce amendment by appropriate 
legislation ; 

2. Subsequent repeal of Eighteenth Amendment would not 
validate H. B. 661 and 662. 

3. H. B. 661 and 662 are unconstitutional under State Consti- 
tution, Art. XXII, as amended in 1932 : 

A. Requires regulation of intoxicating liquors to be ** sub- 
ject" to Constitution of United States (including Eighteenth 

B. Requires regulation of intoxicating liquors to be *' sub- 
ject" to the laws of the United States, which laws limit alcoholic 
content to 3.2 per cent. No limit is found in H. B. 661 and 662. 

C. Forbids establishment or maintenance of any saloon. 
''Places" where liquor may be sold under H. B. 661 and 662 are 
saloons, as are "taverns," "clubs," "restaurants" in H. B. 662. 

4. People and business must be protected from precipitous 
and unconstitutional legislation. 


To A. L. Taylor, March 27, 1933. 
Offices and salaries. 

1. City council may fix salaries for coming year at their next 
to last meeting; 

2. All municipal offices set out in H. B. .664 must be filled, 
but one individual may hold two or more of such offices. fSec. 
9034, 9035, C. L. 21.) 


To Robert Tallman, March 27, 1933. 

Re: Transfers fr©m penitentiary to reformatory and vice versa, and of 
insane convicts to state hospital. 

Transfer of inmates from Reformatory^ to Penitentiary pro- 
vided for by Session Laws of 1927, Ch. 78 ; " 

Transfer of insane convicts to State Hospital provided for by 
Session Laws of 1927, Ch, 78, and Compiled Laws of 1921, Sec. 
572, 569. 

A formal inquisition and commitment by court is necessary for 
permanent commitment as a regular inmate of State Hospital. 


To Gladys Cook, March 28, 1933. 

Mileage for Cosmetology Board. 

Senate Bill No. 21 (1933) provides maximum mileage of 8 
cents per mile. The Cosmetology Act of 1931 provides mileage of 5 
cents per mile, which does not conflict with the later act. 

86 Biennial Report 


To W. G. Christie, March 28, 1933. 

Not subject to supervision by Insurance Department. 

Membership Certificates, providing that upon the pa\^ment of a 
stated annual amount the Hospital Association will furnish the 
holder with hospital care for a stated number of days during year, 
do not constitute insurance contracts and their issuance would not 
subject the Association to supervision by State Insurance Depart- 


To Geo. A. Wilkes, March 28, 1933. 
Stickers on ballots. 

Where the name of a person not printed on the ballot is per- 
mitted to be written in (Sec. 7711, C. L. 1926) a printed sticker may 
not be used. 

Citinn: McFarland v. Spengler, 199 Cal. 147; 248 Pac. 521; 20 
C. J. page 159, Sec. 169, note 31; Jackson v. Winans, 287 111. 382; 
122 N. E. 611. 


To J. M. Wood, Examiner, March 28, 1933. 

Custody and investment of Fred Forrester fund for Humane Society. 

1. Both the Fund and the income therefrom should be in the 
custody of the State Treasurer and all expenditures should be made 
on vouchers approved by the representatives of the Colorado Hu- 
mane Society and warrants drawn aerainst such funds bv the Audi- 
tor of State. (Sec. 335-6, C. L. 1021). 

2. There is no provision in the will of Forrester nor in the 
C^onstitution of Colorado requiring: or authorizing; aj^proval by the 
Attorney General of investment of this fund. 

3. The Forrester will does not prescribe the kind of stn-urities 
or prop«Tty in which the fund shall be invested and tlu»re is no 
statute poverninjr the matter; l)ut it is a fundamental rule of law 
that a trustee is bound to exercise a liiph decrree of diligence and 
prudence in the manatrement of trust funds (26 H. C. L., Sees. 160- 
161). which has not been done in this (See. 686-691, C. L. 
19LM ; 26 K. C. L. 1306). 


To H. F. Koperlik, March 31, 1933. 

Re: Kunkulii claim. 

A person who has Wen certified by the Civil Service Commis- 
sion to :i specified j)osition. who fails to tnke the proper steps tO 

Attorney General of Colorado 87 

become established therein and by reason of such failure permits 
another to occupy the position and perform the duties thereof, is 
not entitled to compensation for the time between his certification 
and the time when he takes office, because it is a well settled rule 
that ''the people cannot be compelled to pay twice for the same 
service.'' Thompson v. Denver, 61 Colo. 470, 472; 158 Pac. 309. 


To Frank W. Frewen, April 7, 1933. 
"Unanimous vote." 

"Unanimous vote of all the members" of the council or board 
means unanimous vote of the members of the board and not of a 

This being the law a proceeding against a member of the board 
for revocation of a license would be useless, since to revoke the 
license would require an affirmative vote of that member. 


To Chas. M. Armstrong, April 11, 1933. 

Sale of stock by incorporator or owner of company. 

The owner of a companj^ may not sell the stock of his own 
companv unless he has been registered as a dealer or salesman under 
Sec. 3 of the Act (S. L. 1931, Ch. 95). 


To Col. Banks, April 12, 1933. 
Constitutionality of Aeronautic Commission Act. 

A provision in an Act to the effect that ' ' there shall be no ap- 
peal from the decision of the commission" would not invalidate the 
entire statute ; even though such provision standing alone is invalid, 
an appeal could be taken to the courts. Greeley Transportation Co. 
vs. People, 79 Colo. 307-312. (S. L. 1927, Ch. 64.) 


To Sen. Houston, April 12, 1933. 

Member may not be appointed to Oil and Gas Conservancy Commission. 

(S€C. 8, Art. V, State Constitution; Barnev v. Hawkins, 257 
Pac. 411,43 A. L.R. 583). 

Interest and penalties. 

Mr. C. S. Ickes, ^P"l '^' ''''■ 

County Treasurer, 
Fort Collins, Colorado. 
Dear Sir : 

I duly received your letter of the 6th inst., inquiring as to the 

88 Biennial Report 

effect of House Bill No. 64, recently passed by the Colorado General 
Assembly. This Act amends Sections 7191 and 7386, Compiled 
Laws of 1921, as amended in 1925 and 1927. 

Section 7191 as it now stands provides for a penalty of six per 
cent per annum on the first installment of one-half of any tax not 
paid prior to March 1st, provided it is not paid before April 80th 
and is paid prior to December 1st; while said Section 7386 as it 
now stands provides for a penalty of ei^ht per cent per annum on 
all unpaid taxes after August 1st. 

My opinion is that the only safe course for you to pursue as 
Treasurer is to demand eiofht per cent interest after August 1st and 
and until the tax sale is held. In this way you will avoid any lia- 
bility for failure to collect a sufficient penalty and if any taxpayer 
thinks himself aggrieved by this construction he will have his rem- 
edy in Court. 

Very truly yours, 


Attorney General. 

Assistant Attorney General. 

49 INTOXICATING LIQUOR— (Beer Law of 1933) 
To Homer F. Bedford. April 13, 1933. 

Expenses of administration of the act. 

Whore a law devolves a duty u]ion a ]uiblic officer yet makes no 
provision for necessary expenses, the presumption is that he has the 
riirbt to use sufficient of the funds coming into his bands under the 
l;i\v <f. nriv the reasonable expense of administering the law. 
Manitou, et a1. vs. First National Bank, 37 Colo. 344. 

This presumption is broad enough to include expense of print- 
ing forms, and to employ such clerical assistance as is ncccssnry 

(Opinion of April 27, 1933, attached) 


ToM. F. Ilofstcttcr. .\pril 19, 1933. 

Executive Committee. 

A T^nion lliprh School District is not authorized to elect an 
executive committee to take over the powers and d\ities of a regu- 
larly elected schru)! b(ard. The school board must be elected in 
compliance with Sec. 8391, C. L. 1921, where the district is located 
in a fourth class county. 

Attorney General of Colorado 89 


To C. M. Armstrong, April 20, 1933. 

Dealers* licenses. 

It is not necessary for a dealer to take out a dealers' license 
for each place where he is demonstrating cars. Administrative con- 
struction of law justified. 


To Homer F. Bedford, State Treasurer, April 27, 1933. 

Custody af Funds. 

University is not required to leave funds in custody of State 
Treasurer, but it would be wise and prudent to do so. 

April 27, 1933. 
Mr. Homer F. Bedford, 
State Treasurer, 
State Capitol, 
Denver, Colorado. 
Dear Mr. Bedford : 

You have requested the opinion of this office as to whether or 
not the Regents of the University of Colorado are required to allow 
the funds of the University to remain in your custody in like man- 
ner with those of other departments and institutions of the State, 

Section 5 of Article VIII of the State Constitution provides 
that the University at Boulder, the Agricultural College at Fort 
Collins, the School of Mines at Golden, and the Institute for the 
Education of Mutes at Colorado Springs are institutions of the 
State, ''and the management thereof subject to the control of the 
state, under the provisions of the constitution, and such laws and 
regulations as the general assembly may provide." 

Section 12 of Article IX of the Constitution provides for the 
election of Regents of the University, and that such Regents shall 
be a body corporate. 

Section 14 of the same Article provides that *'The board of 
regents shall have the general supervision of the university, and the 
exclusive control and direction of all funds of and appropriations 
to, the university." 

While, as already noted, the Constitution adopts several edu- 
cational institutions as State institutions, it makes no specific pro- 
vision for the government of any such institutions except the Uni- 
versity, the government of the others being left to the determina- 
tion of the General Assembly. 

The real question with which we are confronted concerns the 
meaning and effect of the words ''exclusive control and direction," 
as used in Section 14 of Article IX above quoted. It might be con- 

90 Biennial Report 

tended, for instance, that "exclusive control and direction" of the 
funds of the university does not necessarily include custody of such 
funds, and that, therefore, the State Treasurer, und^r statutes here- 
inafter referred to, is entitled to their custody notwithstanding this 
constitutional provision. 

It is of interest to note how the General Assembly of 1877, 
which met within one year after the adoption of the Constitution, 
construed the meaninjjj of said Article TX, Section 14. That Gen- 
eral Assembly provided a system of fiscal orovernment for the T^ni- 
versity in an act approved March 15. 1877, entitled "An Act to 
repeal Chapter 87 of the Revised Statutes and to provide for the 
government and support of the TTniversity of Colorado," being 
Chapter 101, General Laws of 1877. 

Sections 14 and 15 of said Chap+er provide, in substance, that 
disbursements of the funds of the University shall be made by the 
treasurer thereof upon warrants drawn by the president of the 
institution and countersigned by the secretary of the regents. 

Sections 19 and 20 of said Chapter provide a fractional mill 
levV' for the support of the TTniversity and direct the Auditor of 
State to issue warrants against the proceeds of such levy upon the 
order of the president of the Board of Regents countersigned by its 
secretary in favor of the treasurer of the T^niversit}^ 

Thus it is apparent that the General Assembly of 1877 under- 
stood that the Constitution intended to vest in the Regents of the 
University not only the control and direction of its funds but the 
actual custody thereof, for the statutes above cited require that 
disbursonients of the funds of the University be made dirrctly by 
warrants upon the treasurer of the institution, rather than by war- 
rants drawn upon the State Treasurer, aiid the proctM'ds of the mill 
levy provided for by this early statute are rcfjuired, or at least per- 
mitted, to be withdrawn from the State Treasurer upon warrants 
drawn by the Auditor of State upon orders signed by the president 
of the Regents and the funds of the University thus placed in the 
custody of the T'niversity treasurer. 

Said Sections 14 and 15, 19 and '20 have never l)een repealed or 
su))stantially amended and now appear as Sections 8009, 8010, 8013 
and H014, Compiled Laws of 1921. 

It now becomes of interest to compare the fiscal system set up 
by the same CuMioral Assembly for the management of the Agricul- 
tural College at Fort Collins. The fiscal management of the Agri- 
cultural College is provided for by an Act approved .March 9. 1S77, 
entitled "An Act to provide a fund for the building a?ul mainte- 
nance of the Agrricultural College of Colorado," the same being 
Chapter 3. General Laws of 1877. 

Sections 1 to 4 of that Chapter provide for a mill levy for the 
use of the institution, to !)e c(»Ilected in the first instance by the 
count V fre.isnrers and remitted bv them to tin* Stat«' Treasiirer and 

Attorney General of Colorado 91 

by him kept in a separate fund known as ' ' An Agricultural College 
Fund." Section 5 of the same Chapter provides, in substance, that 
when moneys are available in sufficient amounts from said mill levy 
to commence the erection of college buildings, the Auditor of State 
shall draAV warrants upon the State Treasurer in favor of the treas- 
urer of the State Board of Agricuture in such sums as the Board 
shall deem necessary for the erection of buildings or the running 
of the College. Section 6 of said Chapter provides, in substance, 
that the Auditor of State shall draw warrants on the funds of the 
College on bills approved by the president of the Board of Agricul- 
ture and countersigned by the secretary of said Board to defray 
the lawful expenses of building and supporting the College. The 
above sections of said Chapter 3 have never been amended or re- 
pealed and now appear as Sections 8091-8096, inclusive, Compiled 
Laws of 1921. 

It will thus be observed that the General Assembly in estab- 
lishing a fiscal system for the University provided that its funds 
might be withdrawn from the State Treasurer as rapidly as they 
accumulated in the state treasury and transferred to the custody 
of the treasurer of the institution while the same General Assembly 
in setting up a fiscal system for the Agricultural College provided 
that its funds should be deposited in the state treasury and with- 
drawn only as the necessities of building and supporting the insti- 
tution should require. 

This legislation of ]877 affords a contemporaneous construction 
of the State Constitution and clearly discloses that the General 
Assembly considered that the University occupied a special and 
unique position by virtue of the specific provisions in the Consti- 
tution for its government. Ever since 1877, it has been considered, 
so far as we can ascertain, that the Regents of the University have 
had the right not only to the control and direction but to the 
actual custody of the funds of the institution. Our courts have 
manj^ times held that a contemporaneous construction of a consti- 
tutional provision is of great weight in determining its actual 
meaning. City and County of Deliver v. Adams County. 33 Colo. 
1; Gibson v. People, 44 Colo. 600; Wilson v. People, 44 Colo. 608. 

The courts also hold that the administrative construction ac- 
corded to a constitutional and statutory provision over a long 
period of years is likewise of great weight in determining the true 
meaning and effect of such constitutional or statutory provision. 
Hessick v. Moynihan, 83 Colo. 43 ; People v. Mootiey, 87 Colo. 567. 

The statute which gives rise to your inquiry is embraced in 
Sections 335 to 342, inclusive, Compiled Laws of 1921. This Act 
was adopted in 1913 and is commonly known as the ''Daily De- 
posit Law." It provides, in substance, that all state departments 
and institutions located in Denver shall transmit daily to the State 
Treasurer all revenues collected bj^ them and in the case of in 

92 Biennial Report 

stitutions located elsewhere than in Denver all revenues collected 
by them shall be transmitted to the State Treasurer monthly. This 
Act expressly includes the State University, for Section 339 de- 
clares that it is not the intention of the Act to divest the Keg:ents 
of the exclusive control and direction of the funds of the Uni- 
versity, but that the intent of the Act is merely to provide for 
the safe-keepinp: of such funds. Evidently, the General Assembly 
had some doubt as to the constitutionality of this provision for 
the same section proceeds to declare that if a part of the Act is 
unconstitutional the remainder shall stand. 

Soon after the passage of this Act, this department was called 
upon for an opinion as to whether or not it applied to the State 
University. In an opinion prepared by Mr. Francis E. Bouck, 
then Deputy Attorney General and now a member of the State 
Supreme court, and addressed to the President of the Board of 
Regents, to the Auditor of State and to the State Treasurer, this 
office said : 

"Tn so far as the State legislature has attempted to 
safej?uard the funds belonging to the State T^niversity, its 
action seems legal and commendable. When the univer- 
sity funds are actually idle they are to be kept in the 
custody of the State Treasurer. 

"On the other hand, the Board of Regents, acting 
as a constitutional body, may withdraw these funds in 
such amounts and at such times from the custody of the 
State Trea.«urer as in its discretion may seem to it neces- 
sary, by warrants of the Auditor of State issued in favor 
of the Treasurer of the T^niversity upon the ordrr of the 
President of the Board of Ri^crents. countersigned bv its 
Secretary. (R. S. 1908, Sees. 0947, G94S, 0950. 0953.) 

"I find nothing in the 1913 act which requires a 
change in the fiscal method prescribed in the Revised 
Statutes " (See Biennial Report of the Attornev Gen- 
eral. 1913-1914, page 104.) 

In short, this department recognized the propriety of legis- 
lation directing the Rrgents to allow the funds of the University 
to remain in th(» custody of the State Treasurer for sjifo-kecpincr. 
but at the same time also recogui/ed tlic riglit nf the Reg(»nts under 
the Constitution to withdraw such funds for use in tht'ir discre- 

Our conclusion therefore is that the Regents have the right 
lo withdraw T'niversity funds from the custody of the State Treas- 
urer, at sucli times and in such amounts as they may in their dis- 
cretion determine. 

However, especially in view of the disturbed economic con- 
ditions which prevnil throuphout the i-ountry, this office is very 

dccidcdlv nf flic oplnidji f)i;it it would ]»(• wise ;ind iwihli'iif iii>on 

Attorney General of Colorado 93 

the part of the Regents to allow the idle funds of the University 
to remain in the custody of the State Treasurer and that while 
such funds are subject to withdrawal in gross sums in the dis- 
cretion of the Regents, such withdrawals ought to be made only 
in such amounts as from time to time will meet the payrolls and 
other expenses of the institution, all to the end that the bulk of the 
funds of the institution will be in the custody of the State Treas- 
urer and only a comparatively inconsiderable amount deposited 
in a bank or banks in the name of the institution or of the Regents. 
We are transmitting a copy of this letter to the President of 
the University, to be by him laid before the Board of Regents. 
Respectfully yours, 


Attorney General. 

Assistant Attorney General. 
Assistant Attorney General. 


To Verne S. Hill, April 27, 1933. 

Constitutionality of H. B. 707. 

H. B. 7C7 (29th G. A.) which required abandoned railroad 
lines to be turned over to the P. U. C. is unconstitutional because : 

1. It provides for the taking of property without due process 
of law and without compensation. (Sec. 4 of the Act.) 

Radetsky v. J orgenson, 70 Colo. 423 ; 
Jones V. Southern Ry. Co., 285 Fed. 19, and other cita- 

2. It seeks to nullify or restrain the power that Congress has 
granted to the Interstate Commerce Commission to permit the 
abandonment of railroads. 

Ry. Commission v. Worthington, 255 U. S. 101 ; 
Colo. V. U. S., 271 U. S. 153 ; 70 L. Ed. 878 ; and other 


To Verne S. Hill, April 28, 1933. 
Amendment to H. B. 707. 

A law empowering the Public Utilities Commission to accept 
railroad lines and hold same in trust for the public would be con- 
stitutional, but could not cut off the rights of bondholders. 

A law providing that abandonment of railroad line shall not 
extinguish rights of public in easements for rights of way is con- 
stitutional, but courts must decide what those rights are. 

94 Biennial Report 


To Wm. P. Kavanaugh, May 1, 1933. 

Sec. 16, Art. X, of the State Constitution provides that no 
appropriation can be made whereby the expenditure of the state 
during any fiscal year shall exceed the total tax then provided 
for by law. 

In re : Appropriations, 13 Colo. 322. 


W. K. Freeman, May 1, 1933. 

Request for appointment of duly commissioned inspectors. 

Under Sec. 3070, C. L. 1921, the State Dairy Commissioner 
may appoint commissioner's inspectors at the request of a munici- 
pality, but such appointments should be made with the understand- 
ing that the State assumes no obligation whatsoever for salaries or 
expenses, and that the work done should be entirely under the 
direction of the State Dairy Inspector. 


To Governor Johnson, May 2, 1933. 

Transfer of auditing division. 

In view of the provisions of the Administrative Code Bill 
(Ch. 73, S. Ij. '33) the General A.^sembly could not in the Gen- 
eral Appropriation Bill, provide for the transfer of the Auditing 
Division of the State Highway Department to the supervision of 
the Auditor of State. (71 Colo. 69.) 

58 INSURANCE— Mutual 

To (J. B. Irwin, May 2, 1933. 
Insurance of state property. 

The State or its ])()litical subdivisions nuiy insure iirojierty in 
nnitual insurance coiiipanics when the policy is expressly non- 
a.sscssable. or wlien it provides for two premiums one payable in 
cash and the other contingently payable if required by the com- 
pany. Liability under sucli ;i policy ccises one year from its 
termination or cancellation. 

Sees. 1 and 2, Art. Xi, Colo. Const.; 

Sec. 2r)(>4, C. L. 1921; 

Reports Attv. (Jeneral : 23-24, p. 84; 25-26, p. 145; 29-30, 
]>. 7f); 31-32. p. 186. 

Attorney General of Colorado 95 


To B. F. Stapleton, May 3, 1933. 
Second class appropriations. 

Advisory discussion of disposition of $40,000.00 balance in 
treasury after payment of first class appropriations. 

S. B. No. 745 relating to disposition of Funds derived from 
Motor Vehicle License fees, has just been passed and is now in 
effect, and will provide sufficient funds to the General Revenue 
to take care of all second class appropriations for the current 


To H. F. Bedford, May 3, 1933. 
Transfers of licenses, refunds of license fees. 

1. License may not be transferred from one person to another 
under any circumstances; nor is such license transferable from one 
locality to another. 

2. A part of such license may be refunded where it is in- 
operative through no fault of the licensee and where justice impels 
such refund. 

Citing cases and making suggestions in conformity with given 


To B. F. Stapleton, May 11, 1933. 
Additional salaries of employes. 

Payment for additional work of employes made necessary by 
continuance of General Assembly beyond date of adjournment is 
legal and proper. 

Lowell V. Bonney, 14 Colo. App. 230, 235 ; 

Atty. General's Report 1929-30, Opinion No. 51. 


To 0. T. Reedy, May 11, 1933. 
Drainage district taxes F. A. P. 295-E. 

The Highway Department should not be compelled to paj^ 
drainage district taxes assessed against its right of way. 

Public property is not subject to liens since being held for 
public uses only, it cannot be encumbered in favor of private per- 
sons. (102 U. S. 472; 29 C. J. 738; Sec. 2167, C. L. '21.) 


To Governor Johnson, May 15, 1933. 
Right of Governor to correct errors in journals. 

Where it is apparent from the Senate and House journals that 
a clerical error occurs in an enrolled bill, the Governor may cor- 
rect such error before signing the bill. (Opinion pp. 122, 1911-12.) 

96 Biennial Report 


To Wm. Timbel, May 15, 1933. 

Revocation of licenses. 

Sec. 4750 sets up four different grounds upon which the Bonrd 
of Examiners may revoke licenses, and Sec. 4755 providing that 
the State Board of Health shall make sanitary rules and regula- 
tions covering proper sanitary conditions in the operation of barber 
shops also provides that a violation of such rules and regulations 
shall be grounds for revocation of licenses. 

65 TAXES — Payment of 
S. A. Koenig, May 16, 1933. 

Warrants in payment of. 

School or City warrants may not be used to pay taxes. (See. 
7369, 6901, C. L. '21 ; 6 Colo. 478; 8 Colo. 485; 15 Colo. App. 294.) 


To W. C. Danks, May 17, 1933. 

Reinstatements in departments. 

An officer *s failure to account for state property in his pos- 
session at the time of his discharge, does not invalidate the dis- 
charge or justify reinstatement. (Sec. 192, C. L. '21.) 

To II. P. Bedford, May 17, 1933. 

Duty in re: Weights and measures. 

State Treasurer has no anthoritv to appoint a Superintendent 
of Weights and Measures. (S. L. 1921, Ch. 71.) 

To Zenas T. Roberts, Sec'y., May 17, 1933. 
Practicinfi: without license. 

A man may operate a dental laboratory, employing a licensed 
dentist to do the work therein without being guilty of practicing 
dentistry without a license. 

In the absence of fraudulent or misleading statements mere 
advert isintr is not gross unpr(»fes.sional condu<*t. 

Practice of dentistry by corporations — discussed and eases 

Attorney General of Colorado 97 

To R. G. Parvin, May 17, 1933. 

Re: H. B. 706 — Trespass on private land. 

Although Sec. 1 of the act forbids the making of any charge 
for the privilege of fishing in the natural streams of the state, it 
do^s not in any way affect the laws of the state forbidding tres- 
passing upon private lands. (H. B. 706, 29th G. A.) 

See also letter to H. C. Moyer, May 18, 1933. 


To J. J. O'Connell, May 17, 1933. 

Deputy county officers. 

Where the salary of a deputy or assistant to a county officer 
has been fixed, and approved by the county board, such salary 
cannot be changed during the term of such officer by action of 
the board alone. (72 Colo. 200; 80 Colo. 14.) 


To Industrial Comm., May 23, 1933. 

Expenses of. 

Sec. 44 of the Workmen's Compensation Law as amended by 
Sec. 3, Ch. 197, S. L. 1929, constitutes a continuing appropriation 
for the expenses of administering the Compensation Insurance 
Fund, and such expenses need not be included in biennial general 
appropriation bills. (71 Colo. 69; 78 Colo. 521.) 


To Governor Johnson, May 24, 1933. 

Local Government Budgets Act may repeal Levy Limiting Act. 

Local Government Budgets Act m^a}^ repeal Lew Limiting 
Act. (Ch. 146, S. L. 1931.) 


To Jas. P. Mclnroy, Budget Commissioner, May 25, 1933. 

Exemptions under the salary reduction act. (Ch. 181, S. L. 
1933; Const. Sec. 9, 30, Art. V; 67 Colo. 599.) 


To Governor Johnson, May 26, 1933. 

Appointment of members to public office. Resignation. 

Under Sec. 8 of Art. V, of the State Constitution, *'no senator 
or representative shall, during the time for which he shall have 
been elected he appointed to any civil office under this state." 

98 Biennial Report 

This prohibition continues after the leirishuive session and 
remains in force even though the senator or representative should 
resign or attempt to resign his office as senator or representative. 
(See. 8, Art. V, Colo. Const.; Bienniel Reports of Attv. General 
1919-20, No. 21; 1921-22, No. 297; 1927-2S. No. 160.) 


To Governor Johnscm. May 26, 1933. 
Salaries for past services. 

Under Sec. 4455, C. L. 1927, medical examinations were made, 
but through oversight bills for same were not presented, although 
appropriations to cover the services had been made. 

S. B. No. 10 does not provide for extra com]iensation, but 
only for the compensation agreed upon at the time, and the statute 
had already authorized the incurring of the claims represented 
by this Relief Bill, foi* which reasons the proposed act is probably 


To .John Scavarda, May 26, 1933. 

Issuance of licenses. 

Where a])plicants ])ass the examination re^juired and are found 
to be under the ajxe of 21 years and have not had two years ex- 
perience, the board, under its rules, may postpone is.suance of 


T(. llcii. II. F. Bedford, May 31. VXV.\. 
Ksc heats. 

In vi( w of the provisions of Sec. 5, Art. 9, of the Colo. Const., 
that . . . the public school fund of the state shall cons'st of . . . 
(iJI rstatcs that nituf cschrat to the state; . . ." the provision of 
parairraph (2) S<'c. 2 of H. B. 500 is in <lirect conflict with the 
plain lany:ua>?e of the Const ii of inn mid \i\\}<\ l><' div^ii«''.ird.«d in 
the aihninistration of the act 

To .F. T. Brooks. June 1, 1933. 
Gratuitoun work. 

A person wlio performs barber work graiuiiou^iy lor a hm- 
itod number of persons and not for tlie pnl)lie ireiierally. is not 
subject Ut the stattites of this state re<|uiri!ur barbers to bo licensed. 
(Sec. 4752. C. F.. '21 : S T. 192!>. Ch (W.) 

Attorney General of Colorado 99 


To Land Commissioners, June 2, 1933. 

S. B. 415 — Constitutionality of. 

S. B. 415, approved May 29, 1933, requiring the State Board 
of Land Commissioners in selling public lands of the State to hon- 
orably discharged soldiers, sailors or marines who have served the 
country in time of war, to allow a credit upon the purchase price, 
of such lands to the extent of one dollar per day for the time of 
such war service is unconstitutional as applied to sales of all pub- 
lic lands of the State, with the possible exception of saline lands. 
(PP. 31-33, C. L. '21; Const. Art. IX, Sees. 3, 5, 9, 10; IT. S. Const., 
Art. VI, Sec. 2, 3; 19 Colo. 63, 68.) 

80 COUNTIES— Reclassification 

To Romilly Foote, June 2, 1933. 

Constitutionaity of H. B. 135 (29 G. A.) purporting to re- 
classify a single county for the purpose of determining fees and 
salaries of county officers. 

Advisory only. Courts might uphold the reclassification of a 
single county upon the theory that the Legislature had first de- 
termined as a fact that such reclassification was necessary. 
(Const. Art. XIV, Sec. 15; 51 Colo. 364.) 


To Jackson Cochrane, June 3, 1933. 

Insurance and breakage of plate glass. 

In the practical application of the provisions of the first parar 
graph of Sec. 2500, C. L. 1921, the making of insurance upon 
plate glass against breakage is impliedly authorized; . . . and 
all companies operating pursuant to the provisions of said first 
paragraph may properly be permitted to make insurance upon 
plate glass, in a separate policy. 

To Governor Johnson, June 5, 1933. 
Appointment of member to State Highway Board. 

A member of the State Senate is not eligible for appointment 
as a member of the State Highway Advisory Board.; 

Citing Sec. 8, Art. V, Colorado Constitution, and Previ- 
ous opinions in Reports of Attorneys General. 

100 Biennial Report 


To Governor Johnson, June 5, 1933. 

Appointment of member as Warden of State Reformatory. 

A member of the House of Representatives is not eligible for 
appointment as Warden of the State Reformatory. 

Citing eases and Reports of Attorneys General. 


To Governor Johnson, June 6, 1933. 

Under Sec. 4716, C. L. 1921. the Board may reinstate persons 
whose licenses have been revoked. 


To Elsie Cribbes, June 7, 1933. 
Reclassification of district. 

Und-r the provisions of S. B. 317 (29th G. A.) a first class 
school district which is to be reclassified and become a third class 
district, holds its election under the election laws relating to first 
class districts. 


To W. S. Freeman, June 9, 1933. 
Interpretation of House Bill No. 132. 

1. The provisions in Sec. 1, sentence 3, means that chocohUe 
ice cream, nut ice cream and fruit ice cream are only required to 
contain 10% butterfat. 

2. ''A tolerance of 1% iUlowed ..." means that a varia- 
tion of 1% from the standard, or from specified dimensions, weight, 
etc., is allowable. 

3. Small milk producers are .subject to inspection and sani- 
tary regulation in accordance with the law. 

4. Small milk producers must be licciiM-d urdcss th«s .m- 
supply int? milk rxrlusivchj to cities having municipal inspection. 

5. Licensing and inspection of counter ice cream. These ma- 
chines are not ice cream factories nor "oMirr places of business 
where dairy products arc manufactured tor distribution,** 
etc., and arc probably not subject to pj«\riMi,i ,.f license, but are 
subject to inspection and the enforcement of sanitarv regulations. 
(Dairv Coile of 1931 ; S. L. 1923, p 263; 44 Colo. 600; 88 Colo. 
89; 78 Colo. 407.) 

Attorney General of Colorado 101 


To W. A. Alexander, June 12, 1933. 

Re: Ten per cent additional corporation fee. 

The provision in Sec. 1, Sub-div. A of H. B. 564, providing 
for ''Ten per cent additional amount to fees which are due . . . 
to Secretary of State" upon incorporation of any corporation or 
association for profit ' ' applies only to domestic corporations. ' ' 


To Board of Trustees, School of Mines, June 12, 1933. 

Tuition of residents. 

Section 8040 as amended by S. B. 391 (29th G. A.) makes 
the charging of a reasonable tuition fee for resident students man- 


To Omer T. Mallory, June 15, 1933. 

Provision of funds for. 

Subsection (b) of Sec. 1 of the Act to provide funds for the 
payment of old age pensions, etc., which provides for the collec- 
tion of $1.00 to be paid annually, for the registration or re-regis- 
tration of motor vehicles, is in effect from and after the passage 
of the act, and applies to registrations and re-registrations. (S. L. 
1933, Ch. 144.) 


To C. C. Hezmalhalch, June 15, 1933. 

Deductions for, under new salary schedule. 

Deductions for State Employes' Retirement Fund should be 
based upon the reduced rather than upon the original salaries of 
the employes affected by the change. 

To H. F. Bedford, June 15, 1933. 

Expenses of administration. 

In administering the Motor Vehicle Act, the State Treasurer 
is necessarily confined to the appropriations made therefor in the 
General Appropriation Bill for the biennial period. (S. L. 1931, 
Ch. 122; H. B. 527; S. L. 1931, Ch. 53; S. L. 1933, Ch. 37.) 

102 Biennial Report 


To C. R. Monson, June 20, 1933. 

Purchase of by owner at price set by commissioners. 

At least so long a? his right to redeem continues, an owner of 
land cannot extinguish the county's lien for valid taxes except by 
payment in full, as set out in Sec. 7430, C. L. 1921, providing for 

June 20, 1933. 
Hon. C. Ray Monson, 
District Attorney, 
Steamboat Springs, Colorado. 

Dear Sir: 

You have requested an opinion from this office as to whether, 
under Section 7422, 0. L. 1921, as amended by S. L. 1927, page 
612, the owner can purchase from the county the tax-sale certi- 
ficate for his own land, at a price set by the county commissioners 
which is less than the price bid therefor by the county with penal- 
ties and interest. 

The above section provides, among othor things, that the county 
treasurer may sell a certificate held by the county to any person 
for the amount bid by the county with penalties and interest, to- 
gether with the sum of One Dollar for making such assignment ; 
also the taxes assessed thereon since the date of such sale or for 
s^ich s^cm as the hoard of county commissioners may decide and 

The other statute which bears upon this question is Section 
7430, C. L. 1921, as amended by S. L. 192;!, pagre 441, which pro- 
vides, in effect, that land sold for taxes may be redeemed by the 
owner within three years, or thereafter at any time before the 
execution of the treasurer's deed hy payment to the county of the 
amount for which the same tons soJd with interest together with 
subsequent taxes paid by the purchaser and endorsed on the cer- 
tificate. It will be noted that no provision is made in this section 
for the county commissioners to authorize the treasurer to assign 
the certificate for a lesser sura than the amount bid at the sale 
plus interest and penalties. 

We have been unable to find any Colorado case deciding the 
question you ask, but the language of the court in several cases is 

In Buchanan v. Ciswold, 37 Colo. 18, certain land was bid in 
by the county for taxes and the tax-sale certificate was sold to 
the defendant at a reduced price under Section 7422. supra. The 
owner, subsequently, had the tax de^^d set aside as irregular and 
void, and the question arose as to how much he was required to 
pay the fiefendant. The court said at pages 20-21 : 

Attorney General of Colorado 103 

"* * * he must discharge the lie7i created h>j the tax, 
sale and subsequent taxes constituting^ the basis of such 
deed. * * * The purchase from a county of a tax-sale cer- 
tificate issued to it vests the purchaser with the same rights 
as though he had been the original purchaser at the tax 
sale. The owner of property who neglects to pay his taxes 
cannot tal'e advantage of any reduction which the pur- 
chaser of his property at a tax sale may have made in 
disposing of the tax-sale certificate. That is a matter of 
contract between the seller and purchaser, with which the 
owner is not concerned. The county cannot take a tax 
deed. It cannot realize upon certificates issued to it ex- 
cept by redemption from the sale, or disposition of such 
certificate. The owner tcho fails to discharge his obliga- 
tion to pay his taxes on his lands is not to he rewarded 
for his delinquency hy being permitted to take advantage 
of a reduction ivhich a county may have oeen compelled 
to make in order to dispose of a tax-sale certificate issu£d 
to it for taxes ivhich he shouM have paid, and taxes sub- 
sequent which he has not discharged." (Italics ours.) 

The court held that plaintiff to recover his land must deposit 
with the clerk the amount for which said property was sold at the 
tax sale (to the county) plus subsequent taxes paid by defendant 
with interest and penalties. 

In Newmyer v. Tax Service Corporation, et al., 87 Colo. 474, 
one Newmyer bought certain lands on which the taxes for 1914, 
1915, 1916 and 1919 were delinquent. The failure to sell for the 
1919 tax was later discovered and his wife purchased the certifi- 
cate. Then the other delinquencies were discovered and the land 
sold to the Tax Corporation for these taxes. Mrs. Newmyer sold 
her certificate to Newmyer and then took a deed from him in fee. 
The court held that the lien for the other taxes was not cut off, 
saying, at page 476: 

''If Mr. Newmyer had bought at the sale for the 
tax of 1919 he could acquire no rights based thereon, since 
it was his duty to pay his taxes. * * * Public policy will 
not permit a delinquent taxpayer to acquire any rights 
based upon his Cwn wrong." 

(See also Ireland v. Gunnison Mountain Coal and Coke Com- 
pany, et al., 87 Colo. 193, and Bowman v. Eckstein, 46 Iowa 583.) 

In Mathewson v. Uevel, 82 Kan. 134, an owner of part of a 
tract attempted to obtain title to the whole by allowing his land 
to be bid in by the county for taxes and then purchasing a certifi- 
cate to the whole. Although it seems the case could have been 
decided on another point, the court says: 

104 Biennial Report 

''It was Mathewson's duty to pay his taxes. He 
could not take a valid tax deed of his own land. The at- 
tempt to do so merely amounted to a redemption from 
the tax sale," 

holding: the deed to the whole tract void. 

So it appears that such a transaction as is involved here 
amounts merely to an incomplete redemption or partial payment 
of taxes. 

On the general proposition that the owner or any one under 
a legal or moral duty to pay taxes, who lets the land be sold for 
delinquent taxes and buys it in, either directly or through a 
stranger who purchased at the sale, does not, in this way, improve 
his title, or defeat encumbrancers, see the exhaustive note on 
Cmie V. Wood, 108 Iowa 260, 75 Am. St. Rep. 223, 248. 

We can find no reason why this rule should not apply as well 
to the lien of the county for taxes in full plus interest as to other 

Therofore, we are of the opinion, particularly in view of the 
language of the Colorado Supreme Court in related cases, and 
in view of the cases in other jurisdictions, that at least so long as 
his right to redeem continues, an owner of land cannot extinguish 
the county's lien for valid taxes except by payment in full, as 
set out in Section 7430, ffupi^a, providing for redemption, or some 
other me*ho<l by which the same result is accomplished. 

Very truly yours, 


Attorney General. 
Assistant Attorney General. 
(See opinion to C. S. Ickes, March 10, 1934, and C. H. Stew- 
art. January 4, 1934.) 


To Dr. \V. W. Williams, June 21. 1933. 

Power of Board to remove Secretary-Trea.surer. 

A provisional appointee to a position in the classified service 
rii.iv be permanentlv relieved from dutv bv the appointing power. 
(See. 4531, C. L. '21 ; Const. Art. XII, Soc. 13; S3 Colo. 3S4.) 


To Jns. B. Mclnroy, July 22, 1933. 

Meat and SlauKhterhouHe Innpoctor. 

The Act of 1907 establishes a continuing appropriation for 
Meat and Slaughterhouse Inspector. 

Attorney General of Colorado 105 

Under civil service rules the former incumbent of the office 
would be entitled to continue in the performance of the work, if 
the work goes on. (Sec. 1026-1036, C. L. '21; S. L. 1933, Ch. 37.) 


To Erl H. Ellis, June 23, 1933. 

Local Government budget bill. 

Local Government Budget Bill (S. B. 407, 29th G. A.) does 
not repeal the Levy Limiting Act. (S. L. 1931, Ch. 146.) 


To C. M. Armstrong, June 27, 1933. 

Mutual benefit associations. (Opinion never released.) 

*'A11 mutual benefit associations incorporated since the effec- 
tive date of Ch. 99, S. L. 1913, are incorporated and doing business 
without lawful authority; and that no articles of incorporation of 
mutual benefit associations should be accepted for filing by the 
Sec'y- of State in the future." In any event such articles should 
be referred to the Commissioner of Insurance. 


To Geo. Hetherington. June 27, 1933. 


New law makes no provision for the ''additional recording 
fee" provided for in Subsec. 4 of Sec. 6 of Inheritance Tax Act 
of 1927, so fee of $1.25 is no longer properly chargeable by clerks 
of county courts. (S. L. 1933, Ch. 106.) 


To E. M. Gross, June 27, 1933. 

Withdrawal shares. 

The statutory provisions in the new law concerning withdrawal 
shares should be applied by the Commissioner according to their 
literal effect, so as to be construed as affecting shares concerning 
which withdrawal notices were on file at the time the new act 
took effect. 


To Jackson Cochrane, June 29, 1933. 

Not an insurance company. 

The State Compensation Insurance Fund is not taxable as an 
insurance company. 

106 Biennial Report 

Sec. 2486, C. L. 1921, provides that insurance companies shall 
pay a tax througrh the Insurance Commissioner. 

Sec. 2472 defines "insurance company." 

The case of Ban & Kariva Co. v. Industrial Comm., (TUah) 
247 Pac. 490, decided that the state insurance fund has no dis- 
tinct entity independent of the industrial commission. 


June 29, 1933. 
Mr. C. W. Taylor, 
County Attorney, 
Glenwood Springs, Colorado. 

Dear Sir: 

In response to your letter of June 8th, in which you ask our 
opinion as to the effect of the law adopted March 8, 1933, eon- 
cerninj? niileafire to be allowed State, County and precinct officers, 
we wish to advise you as follows: 

It is clear to us that the intent of the law is to reduce ex- 
pense allowance, primarily in the use of automobiles for each mile 
necessarily traveled on official business. The reason for this is 
clear. Automobiles are much cheaper, roads are much better, and 
cost of operation has been i^^reatly reduced in the last f(;w years. 

For the above rea.sons we are definitely of the opinion that 
in all cases where a fixed amount had been paid to all public 
officials for the use of their cars that this amount is limited to 8 
cents per mile. For example: Section 7928, C. L. 1921, i)rovides 
that sheriifs shall be allowed actual traveling: expen^^es not to ex- 
ceed If) cents per mile, is now reduced to not to exceed S cents 
per mile. When the 1917 Act was adopted, S. L. 1!)17. ])aj:e 22'), 
fixintr the amount to Id cents ])er mile, our office ruled that sheriffs 
should b" paid under the new statute from the date it took effect. 
Opinion No. Mf), 1917-18. 

This conclusion is not in conflict with the Constitutional in- 
hibition of reducinjr salaries of public otiicers durin;; their term, 
l)ecause this allowance for travelinja: expenses is not salary witliin 
the meaning? of our Constitution. This distinction has been rec- 
opnized })y our Supreme Court in Teller County vs. Trowbridpre, 
42 Colo. 449, and in several cases cited in M C. J. 1124-25. 

There is, liowevei . an exception that must be nuide to the 
above rulinfr. viz.: wiiere a statute fixes :\ mileage foe as compensa- 
tion for a service rendered in addition to the actual traveling ex- 
pense and not in lieu thereof. lender this exception, the mileage 
allowed sherifTs under Section 7HS2, C. L. 1921, remains uncluinired 
during' t<Tms of present incumbents as this kind of a mileage has 
Im-cu held to be .salary within the meaning; of the Constitutional 

Attorney General of Colorado 107 

provision prohibiting reduction of salaries during present terms. 
In other words such mileage is an item of compensation to be al- 
lowed the sheriff as part of his salary. (See Higgins v. Glenn, 65 
Utah 406, 237 Pac. 513. 

Yours verj^ truly, 


Attorney General. 



To Mark Clay, June 30, 1933. 
When County Clerk may act as. 

When there is no bonded abstractor in the county, the county 
clerk may be required to prepare a real estate abstract. 

There is no law requiring a county clerk to furnish chattel 
mortgage abstracts and if he does furnish such abstracts he is 
entitled to make a reasonable charge for so doing. 

Refer to Opinion 111, Report of 1929-30. (S. L. 1929, Ch. 57; 
Sec. 8742, C. L. '21.) 


To C. A. McFarland, June 30, 1933. 
Right of resident at Federal hospital to vote. 

Because a resident at a Federal reservation is called upon by 
local authorities to pay taxes on personal property, does not give 
him a right to vote at election. "No person shall be deemed to 
have gained a residence by reason of his presence, or lost it by 
reason of his absence, for the purpose of voting, while in the mili- 
tary service of the U. S." . . . "that place shall be considered 
and held to be the residence of a person in which his habitation 
is fixed." 

Sec. 7528, C. L. 1921; 

Sec. 7726, C. L. 1921 ; 67 Colo. 441. 


To E. C. Johnson, July 7, 1933. 

Abolishment of. 

Section 7123, C. L. 1921, provides that courts having criminal 
jurisdiction shall sentence certain persons convicted of felonies 
to the State Reformatory, for which reason it is doubtful if the 
State Reformatory can be abolished or suspended by executive 

108 Biennial Report 

To Thos. Annear, July 8, 1933. 

Wages of laborers and mechanics on State contracts. 

H. B. 101 of the 29th Gen. Assembly, relatins? to the rate of 
wages for laborers and mechanics employed on public works of 
the State of Colorado, etc., purports by its title and by the body 
of the act itself, to comprehend only contracts for public work 
to which the State of Colorado is a party, and does not compre 
hend public works undertaken by political subdivisions of the 
State. (Const. Art. XI, Sec. 1; Art. XII, Sees. 1, 13; 67 Colo. 
441; S. L. 1923, Ch. 155.) 


To J. J. Tobin, July 10, 1933. 
Inspection fees. 

The Director of Markets may require that inspection fees be 
paid in cash at the time of inspection; and under Sec. 18, Ch. 96, 
S. L. 1931, is authorized to take such reasonable measures as are, 
necessary to enforce the collection of these fees at the time of the 
inspection. The statute does not require that the fees be paid 
in advance, or that the shipper give bond for the estimated amount 
of the fees for the coming season. 

Under Sec. 5 of the Act the Director has the authority to stop 
trucks to determine weight and destination. 

Apples and pears must be marked with grade, etc., as re- 
quired by Sees. 25 and 27. 

Sec. 24, as amended, must be construed so as to be consistent 
with the rest of the act, as repeals by implication are not favored 
by the courts. 


To Dr. Lester, July 11, 1933. 
Custody of funds. 

1. There should be no objection to furnishing the State Treas- 
urer with a statement of the funds of the University whether de- 
rived from the State or from other sources. 

2. It would be entirely proper to leave the funds of the Insti- 
tution with the State Treasurer until actually needed for necessary 
expenditures, and to withdraw money in gross sums onee or twice 
a month, appro.ximately »" amounts required for actual expendi- 

Attorney General of Colorado 109 


To B. F. Stapleton, July 12, 1933. 
Salary Reduction Act. 

1. Where an employe draws a regular monthly salary and is 
furnished with board Mnd lodging : 

The deductions provided by the Act are based on the '^ sal- 
aries" of the officers and employes. The word ''salary" is com- 
monly accepted as meaning money compensation, and therefore 
the deductions provided for in the Act should be based only upon 
the rates of compensation payable in money. 


To Gov. Johnson, July 13, 1933. 

Right of County Commissioners to contract for building of highway ot 

Under Sec. 8694, C. L. 1921, no contracts can be made by 
the county commissioners of any county, and no liability against 
the county, unless an appropriation shall have been previously 
made concerning such expense. (Road Fund, Sec. 8697, C. L. '21.) 


To J. E. Furlong, July 14, 1933. 
Re: Reflectors— S. B. 110. 

The law requires each motor vehicle and trailer to carry both 
a rear lamp and an approved type of reflector, and that all reflec- 
tors in use after May 23, 1933, must be sealed against the influx 
of moisture or dust. 

Manufacturers or buyers of reflectors originally approved by 
the Sec'y. of State under the old act will have no cause of action 
against the Highway Dep't. for failure to reapprove their devices 
if it finds they are inadequate under the new law. 


To Civil Service Comm., July 17, 1933. 

Re: Mine Inspectors, veto of salary. 

Sec. 3386, C. L. 1921, expressly requires that the Mine In- 
spector for each of the four mining districts must have been a 
resident of his district for at least six years; and as the four offices 
of mine inspector are separate and distinct from each other, the 
Governor acting under S. B. 321, Sec. 3388a, has the power to 
abolish any one of such offices without regard to the question of 
seniority of service. 

110 Biennial Report 


To B. F. Stapleton, July 20, 1933. 

Construction and application of Salary Reduction Act. 

Does not apply to officers whose term and salary are fixed by 
statute or Constitution. (Sec. 30, Art. V; Sees. 2415, 4329, 127, 
C. L. '21 ; S. L. 1923, Ch. 195; 66 Colo. 367; 67 Colo. 599.) 


Mr. L. E. Lanrrdon, July 21, 1933. 
Order of payment of county warrants. 

Counties should probably be on an annual appropriation basis 
but should hesitate to overthrow long established contrary prac- 

To G. E. Ellsworth, July 21, 1933. 

Alcohol — Sale of. 

Importations of alcohol into the State may be only by such 
licensees as have qualified and paid the state fee of $100. Discus- 
sion of law. 


To H. F. Bedford, July 21, 1933. 
Institutional emergency funds. 

Ch. 147, S. L. 1913 (Daily Deposit LawV allows each state 
institution a cash fund of not to exceed $1,000 to be kept in the 
hands of the treasurer of the institution for emergencies. 

The State Apricuitural Collepre and the Fort Lewis School, 
which under Sec. 8144, C. L. 1921, is mad? a part of the A<rricul- 
tural CoUecre system, are entitled to this fund; but the Experiment 
Station and the Extension Department of the Acrricultural Col- 
lege cannot be regarded as separate institutions within the mean- 
ing of the act allowing these emergency funds. (Sees. 8064, 8065 
8107, 8145, C. L. '21.) 

To Executive Council, July 21, 1933. 
Powers of. 

Tho Kxecutivc Council, as the successor of the State Auditing 
Board, ha.s control and supervision of all appropriations, and such 
control extends to nppro])rintions for exniniiiing l>oards ns well 
as other departments, regardlrss of whrther the appropriation is 
frf)m the general revf»nu«'s of tho Stnto or from spocial funds. (Sec. 
C. L. "Jl : S. L. 31. Ch. r,3 : S. L. 33. Ch. 37. Sec. 17.) 

Attorney General of Colorado 111 


Mr. Jas. B. Mclnroy, July 22, 1933. 

Continuinof appropriation for Meat and Slaughter Plant In- 
spector. (Sees. 1026-1036, C. L. '21.) 


To C. C. Harrod, July 24, 1933. 
Construction of law and advice in re: 

1. Student who enrolled in school prior to passag-e of new 
act is subject to new act. 

2. Graduate student completing his course according to the 
requirements of the Medical Board prior to the passage of the act 
entitled to license without further examination. 

3. AlloAvance for office of Secretary including salary is $750. 


To Civil Service Commission, July 27, 1933. 
Promotional examinations. 

Promotional examinations should be governed by rules to be 
adopted by the Commission. (Const. Art. XII, Sec. 13.) 


To H. F. Bedford, July 27, 1933. 
New positions and salaries. 

S. B. 337 provides for salary reductions of state officers and 
employes based upon the respective rates of annual salary in 
effect June 1, 1932. 

Where new positions were created and salaries therefor fixed 
at the very time or after this statute took effect (July 1, 1933), 
there being no pre-existing rate of salary upon which to base the 
reduction, the act cannot be applied. 


To B. F. Stapleton, July 27, 1933. 

Of Lieutenant-Governor and President Pro-tem of Senate. 

Under Sec. 13, Art. IV of the Colo. Const., the Lieut. -Governor 
is entitled to the emoluments of the Governor while acting as gov- 
ernor during his absence from the State. 

Under Sec. 51, page 237, C. L. 1921, the presid'^nt pro tempore 
of the senate is entitled to the salary of the lieutenant-governor 
while he is acting as governor. 

112 Biennial Report 


To Irving A. Fuller, July 28, 1933. 
Termination of. 

Since the general theory of the law is that a license to pursue 
a given occupation is terminated by the holder's death, a son can- 
not continue to operate his father's plumbing business on his fa- 
ther's license. 


To H. P. Bedford, July 28, 1933. 
Appropriations for expenses of department. 

Since the fund designated by the General Appropriation Bill 
out of which the expenses of administering the Liquor Permit 
and License Department are to be paid, has no existence in fact 
or in law, the items appropriated for carrying out the provisions 
of the laws in question, should be paid out of the general funds of 
the State. 


To IT. F. Bedford, July 28. 1933. 
Power of Executive Council to adjust. 

The Executive Council has no authoritj^ to make a transfer 
of any part of the salary appropriation from one employe to an- 

To Executive Council, Aug. 2, 1933. 

Governor may set aside printing contract which is unfair or 
exorbitant. (Sec* 5437, C. L. *21.) 


To Executive Council, August 3, 1933. 
Dormitory at State Home for Dependent Children. 

Contract for, is not controlitMl by See. 29, Art. V of Constitu- 
tion governing State contracts. 


To Mrh. Inez Johnson Lewis, August 4, 1933. 

The State Snp't of INiblir Instruction lias been given no 
power to control the grading of Inst it lit ions of higher learning. 

Attorney General of Colorado 113 


To H. F. Bedford, August 8, 1933. 

The Fire Loss Fund cannot be used in effect as the capital 
of an insurance company ; nor can it be used to pay premiums for 
insurance of State property. 

See Ch. 164, S. L. 1925, and amendment thereto— Ch. 166, 
S. L. 1927. 


To Chas. M. Armstrong, August 8, 1933. 
Administratian of Board and Bureaus under Code Bill. 

The Secretary of State is charged with the general supervision 
of all beards and bureaus placed under his department by the 
Code Bill of 1933, and one of his most effective functions there- 
under is to advise the Executive Council concerning the approval 
or rejection of expenditures made or contemplated by the respec- 
tive boards. 


To Royal I. Fisher, August 9, 1933. 
Expenditures of members. 

''Actual and necessary travelling expenses" of members of 
the General Assembly means travelling expenses from the mem- 
ber's home to the State capitol. 

See Opinions of Atty. General 1911-12, Pages 57 and 80. 


To Colo. Tax Comm., August 16, 1933. 

Of water rights for manufacturing purposes. 

An appropriation of water for manufacturing purposes is a 
property right and, together with dams and other improvements 
for the Durpose of utilizing such appropriation, is subject to tax- 
ation. (Const. Art. XVI, Sec. 6; Art. X, Sees. 3, 6.) 


To Benj. F. Stapleton Aug. 16, 1933. 

Continuing for Mineral Land Department. 

Sec. 1161, C. L, 1921, contains a continuing appropriation 
for the salaries and expenses of the Mineral Land Dep't. of the 
State Land Board, and such expenses may be paid without a 
biennial appropriation therefor. 

114 Biennial Report 


To Industrial Commission, August 17, 1933. 

Companies desiring to effect immediate change with request 
to conditions of employment, wages and hours to comply with 
XRA Code not required to comply with Section 29 of Ind. Com. 
Law rerjiiirinGr ^O-day notice. 


To Tax CommisMon, Aug. 18, 1933. 

Moffat Tunnel Tax on improvements on public land. 

As a general pro])osition, improvements upon public or leased 
lands in the IMoffat '^I'unnel Improvement District are subject to 
special assessment under the Moffat Tunnel Act. 

Citing Sec. 7193; C. L. 1921 : The Moffat Tunnel Act; 133 
Or. 252. 


To Earle Bryant, Aug. 18, 1933. 
Use of Beer License Funds. 

1. All Beer License money collected by the State of Colo- 
rado under paragraph B, Sec. 2 of the Old Age Pension Act, and 
])y counties and municii)alities in Ihe State since Ai>ril 1. 1923, 
shall be paid into the hands of the county treasurers. 

2. Tinder Sec. 3, of the Old Age Pension Act, all of the $80 
collected by municipalities for beer licenses must also be paid to 
the county treasurers, and the municipalities are allowed to keep 
one-half of any beer license collected by virtue of a city ordinance, 
passed in addition to any ordinance passed in com})liancc with 
the State Law, excepting only the $80. 


To Most Kcv. I'rl)an Vclir, Aug. 23. l!n:>,. 

I^eaHe of parochial sch(K>l building for use as n public school. 

A p'lblic school district may lease property belonging to n 
panx'hia! school and mav emplov Sisters as teachers in such public 
school. (Sec. H333, C. L. '21 ; Const. Art. IX, Sees. 7, 8.) 

To .]. .M. McCarthy, Aug. 24. 1033. 

Importation of. 

There is no way to jtrrvcnl l iie n.iic n| (-(un ici iii.idc -juuds 
imported into this state from other states, \nitil the Federal law 
rrmovint'' restrictions as to interfiTi'ni'e with interstate commerce, 
Itr.funes efTective .Ian. 1 1934. 

Attorney General of Colorado 115 


To Homer F. Bedford, August 25, 1933. 

Ch. 40, S. L. 1933, Industrial Alcohol Act is not repealed by 
H. B. No. 9, Ex. Session, 1933. 


To B. F. Stapleton, August 26, 1933. 

Under Administrative Coda 

Under Sec. 7, page 208, S. L. 1933, no officer, assistant or 
employe of any department, institution or agency of the State, 
shall receive any compensation or fees, in addition to his speci- 
fied salary, from more than one department, institution or agency, 
or in more than one capacity. 


To Jackson Cochrane, August 26, 1933. 

Fee under Section 2492. 

Where a poor person has obtained an order of Court under 
Sec. 6592, C. L, 1921, he should not be obliged to pay the $2.00 
fee required by the Commissioner of Insurance for service of 


To Jacob Schey, Aug. 26, 1933. 

Local option. 

The State of Colorado has by constitutional amendment re- 
pealed all of its bone-dry legislation, and since the legislature did 
not see fit to pass a local option law, the sale of beer throughout 
the State will be governed by the provisions of H. B. 8, 29th G. A., 
Extra Session, municipal ordinances to the contrary nothwith- 
standing. (60 Colo. 370.) 


To B. F. Stapleton, August 28, 1933. 
Employment and payment of additional employes. 

If the State Treasurer finds it necessary to employ more per- 
sons to carry out the provisions of the Motor Fuel Excise Tax law 
in addition to those mentioned in the general appropriation bill, he 
may do so on the theory that the appropriation for the salaries 
and expenses in connection therewith is a continuing one. 

As to those officers or employes whose employment is desig- 
nated and salaries specified, the treasurer should be limited to the 
amount set forth in the general appropriation bill. 

116 Biennial Report 


To Governor Johnson, Aug. 30, 1933. 
Analysis of H. B. 26, 29th G. A., Ex. Session. 

1. Subject of Act is included in call for extra session ; 

2. Title of Act correctly states purpose ; 

3. The Act provides for loans to defend the State, and such 
loans may be contracted under Sec. 3, Art. XI of the Colorado 
Constitution ; 

4. The allocation of excise taxes provided for by existing 
laws to the payment of the contemplated loans satisfies the re- 
quirements of Sec. 4 of said Art. XI ; 

5. The Act is constitutional. 

August 30, 1933. 
Honorable Edwin C. Johnson, 
Governor of Colorado, 
State Capitol, 
Denver, Colorado. 
Dear Governor : 

You have requested from this Department an analysis of 
House Bill No. 26, passed at the recent Extraordinary Session of 
the Colorado General Assembly, approved by you and in effect 
August 17, 1933, and for the opinion of this Department as to the 
constitutionality and effect of said legislation. 

The Act in question is entitled: 


Section 1 of the Act recites that: 

"A critical emergency arising out of the present 
economic depression which has caused widespread unem- 
ployment and consequent indigence and dependence of a 
large portion of the people of this State, made hopelessly 
inadequate federal, state and local relief funds niul 
caused distress and hunger in such a degree, that the 
public peace, order, trancjuillity and safety are seriously 
affected and endangered and the processes of orderly 
government itself imperiled, is hereby declared to exist." 

Section 2 of the Act provides, in substance, that as a means 
of carrying out the purposes of Section 1 as above quoted and to 

Attorney General of Colorado 117 

enable this State to avail itself of the provisions of the Act of 
Congress entitled '*An Act to encourage national industrial re- 
covery, to foster fair competition, and to provide for the con- 
struction of certain useful public works, and for other purposes," 
approved June 16, 1933, and especially Sections 202 and 203 in 
Title II of said Act of Congress, the Governor of this State is 
authorized until January 1, 1935, through the Colorado State 
Highway Department, to construct, finance, or aid in the con- 
struction or financing of public highways and related projects, 
and to enter into agreements with the President of the United 
States, under such terms and conditions as he may prescribe, to 
borrow money in the aggregate amount of not more than Twenty 
Million Dollars, and to accept grants in addition thereto for such 
projects, and to pledge the faith and credit of the State of Colo- 
rado for the repayment of any such loans, and to execute and 
deliver such instruments of writing evidencing such loans and 
grants as may be required and to repay such loans and agreed 
interest thereon according to the terms and conditions thereof. 
Said Section 2 further provides that in making applications for 
loans or grants, or both, the Governor shall submit requests for 
projects which shall insure the expenditure of the moneys re- 
ceived upon the same basis *'as the allocation of funds derived 
from the present gasoline tax." 

The ** present gasoline tax" is provided for by Chapter 140, 
Session Laws of Colorado, 1933, and Sub-section (b) of Section 
10 of that Act provides for the allocation of the net proceeds of 
the tax, as follows: 

**(b) Of the balance of such funds thus obtained 
and remaining with the State Treasurer on the twentieth 
(20th) day of each month he shall pay seventy per cent 
(70%) to the credit of the State Highway Fund and 
twenty-seven per cent (27%) to the credit of the several 
counties of the State in proportion to the number of 
miles of highway in each county designated by the State 
Highway Department as State Highways, and said twen- 
ty-seven per cent (27%) shall be expended by said coun- 
ties only in the construction, improvement, repair or 
•maintenance of public highways in said counties. 

''The Auditor of the State of Colorado shall issue 
warrants covering said payments and the State Treasurer 
is hereby authorized to pay the same. The three per cent 
(3%) remaining shall be transferred to a special fund of 
the State Highway Department which is hereby created 
for this purpose and shall be used and expended by the 
State Highway Department for the construction and 
maintenance of streets, roads, or highways which shall 
be hereafter designated by the State Highway Depart- 

118 Biennial Report 

ment in the various towns, cities or counties in propor- 
tion to the number of motor vehicle licenses issued in 
each county. 

"Under the provisions of this Act the State High- 
way Department shall be empowered to create and desig- 
nate certain streets or parts of streets, or certain roads 
or parts of roads as portions of the State Highway Sys- 
tem, and to construct and maintain thereon such im- 
provements as said department may deem necessary in 
perfection of the system of State Highways ; said streets 
and highways to be constructed and maintained from 
such moneys so transferred to said Special Fund of the 
State Highway Department and the State Highway De- 
partment shall not be limited in its expenditures for the 
construction or maintenance of streets, roads, or high- 
ways, to such counties as have State Highways ^^^thin 
their borders or to cities of twenty-five hundred (2,500) 
inhabitants or less." 

Section 3 of said House Bill No. 26 creates in the office of the 
Colorado State Treasurer a fund to be kno^vn as the ** Emergency 
Highway Construction Fund" for the purpose of paying the prin- 
cipal and interest of any loans procured under the Act. The same 
section provides that from and after January 1, 1934, ''such of 
the moneys as may be necessary but not to exceed twenty-five per 
centum thereof remaining in the custody and control of the State 
Treasurer from the i)roceeds of the motor fuel excise tax pro- 
vided for ])y Chapter 140, Session Laws of Colorado, 1933, and all 
Acts amendatory thereof, after the payment of the expenses of 
administration of the Act and refunds as provided for therein shall 
be paid over to tlie credit and account of said Emergency High- 
way Construction Fund and that such transfers shall continue to 
be made as long as it shall be necessary for the repayment of 
loans and interest made under the authority of said House Bill 
No. 26; and further if such funds so transferred shall not be suffi- 
cient to repay such loans and interest then and in that event from 
and after July 1, 1935, out of the moneys received by the State 
Treasurer from motor vehicle registration and drivers' and chauf- 
feurs* license foes collected under authority of Chapter 122, Ses- 
sion Laws of Colorado, 1931, and all Acts amendatory thereof, 
and after the deduction of expenses of administration of said 
chapter as therein provided, the State Treasurer shall credit the 
amount "normally credited to the State Highway Fund to the 
credit and account of the said Emergency Highway Construction 
Fund" and that such transfers shall continue to be made as long 
as it may be necessary to satisfy said loans and interest thereon. 
At this point, it iimst be noted that the "amount normally cred- 
ited to the State Highway Fund" under the provisions of said 

Attorney General of Colorado 119 

Chapter 122, Session Laws of Colorado, 1931, is 50 per centum of 
the net proceeds derived under said chapter from motor registra- 
tion and drivers' and chauffeurs' license fees (See Section 25, 
Chapter 122, Session Laws of Colorado, 1931). 

Said Section 3 of House Bill Xo. 26 further provides that : 

''Until all such loans and interest thereon shall be 
satisfied no law shall be enacted repealing said Chapter 
100, Session Laws of Colorado, 1933, and said Chapter 
122, Session Laws of Colorado, 1931, nor shall said Chap- 
ter 140 and said Chapter 122 be amended in such man- 
ner as to render impossible the making of transfers of 
funds as above provided in amounts sufficient to meet the 
requirements of such loans and interest." 

Section 4 of the Act provides in substance that whenever in 
the opinion of the Governor the emergency declared by the Act 
to exist shall have ended the Governor shall cease to enter into 
any further agreements for the construction of highways or re- 
lated projects thereunder. 

Section 5 of the Act provides, in substance, that with the 
view to increasing employment quickly and to spread as broadly 
as possible the relief to be obtained through the construction of 
highways under the Act, the Governor shall divide the State into 
such districts as he shall deem advisable to the end that employ- 
ment shall be equitably distributed throughout the State without 
respect to any exising districting. 

Section 6 provides, in substance, that it shall be the duty of 
the Governor in the expenditure of any moneys received under 
the Act, to provide ''that the maximum of human labor shall be 
used in lieu of machinery wherever practicable and consistent 
with sound economy and public advantage" and that in any event 
he shall require on any project undertaken, after the payment of 
the costs of rock excavation or rock Avork, transportation costs 
and materials, that not less than 70 per centum of the remainder 
of the cost of the project be expended upon hand or team labor ; 
and that minimum wages and maximum hours of labor shall be 
in conformity with federal regulations. And further that when- 
ever mechanical craftsmen are employed such craftsmen shall be 
paid such prevailing rates of pay as shall be predetermined by the 
State Industrial Commission of Colorado, giving due considera- 
tion to the number of hours of employment. 

Section 7 of the Act provides, in substance, that in any proj- 
ect undertaken, cities or "cities and counties" having a popula- 
tion exceeding 100,000 shall be considered as political subdivi- 
sions at large in order that "unemployment" may be distributed 
with equity, and that any portion of the funds allotted to the 
credit of the "Highway fund herein created" may be spent and 

120 Biennial Report 

used on projects within said subdivisions and within the boun- 
daries of any municipality or political subdivision. 

In brief, this Act declares the existence of a critical emer- 
gency requiring the State to take measures for defense of the 
public order and tranquillity, authorizes the Governor of the State 
to contract loans from the Federal Government in an aggregate 
amount not to exceed twenty million dollars, for the purpose of 
affording prompt unemployment relief through the construction 
of public highways, authorizes the Governor to pledge the faith 
and credit of the State to the repayment of such loans, and sets 
aside for the repayment of such loans and interest the above de- 
scribed excise and license taxes authorized by existing State laws. 


In a Proclamation issued under the Colorado Constitution, 
calling the General Assembly of the State into extraordinary ses- 
sion you, as Governor, declared that "it is imperative that legis- 
lation be enacted immediately to allay the present widespread 
public discontent and social unrest ; to defend the State; to relieve 
the needy and destitute citizens of this State from want and dep- 
rivation by the provision of direct relief or work relief, or both ; 
to cooperate with the Federal Government in its program of na- 
tional recovery; to prevent disaster in this critical emergency; 
and by reason thereof an extraordinary occasion has arisen and 
now exists, as contemplated in the Constitution of this State for 
the calling of a special session of the General Assembly," etc. 
And, as above stated, the General Assembly in the Act in ques- 
tion likewise declared the existence of an emergency calling for 
the enactment of measures to defend the State, etc. 

Section 8 of Article XI of the Constitution of Colorado dis- 
tinctly recognizes the right of the State Government to contract 
debts by loan "to suppress insurrection, defend the state, or, in 
time of war, assist in defending the United States," etc. 

In view of the above rpioted declaration of the Chief Execu- 
tive of the State and of the finding and declaration of the General 
Assembly that an extreme emergency exists refpiiring measures 
to defend the State, we are clearly of the o])ini()n that the loans 
contemplated by the Act in question would be valid and consti- 
tutional and would 1)6 so held by the courts — State or Federal. 

Seetion 4 of said Article XI of the Colorado Constitution 
provides, in part, that "In no ease shall any <lebt abov(» juen- 
tioned in this article be created except by a law which shall be 
irrepealublc, until the indebtedness therein provided for shall 
have been fully paid or discharged; • • •/' 

This requirement of the Constitution is met by the above re- 
cited provisions of the Act in <|uestion, allocating motor fuel 
excise taxes and motor vehicle license fees i)rovided for by exist- 
ing laws to the payment of the proposed loans and interest 

Attorney General of Colorado 121 

thereon, since the Act in question expressly declares that the 
existing Acts under which such motor fuel excise taxes and motor 
vehicle license fees are collected shall be irrepealable until the 
proposed loans and interest thereon shall have been paid. 
Respectfully yours, 


Attorney General. 
Deputy Attorney General. 
Assistant Attorney General. 

(But see In re Senate Resolution No. 2, 94 Colo. 101.) 


To Jackson Cochrane, Sept. 1, 1933. 

Compensation for examinations under Sec. 2482. 

Where examinations of insurance companies are made under 
Sec. 2482, C. L. 1921, and the costs of such examinations are paid 
by the companies examined, payment being made direct to the 
persons making the examinations, consent or approval of the Civil 
Service Commission to employment of examiners is not necessary. 


To F. E. Dunlavey, Sept. 7, 1933. 

Deductions of levy to pay interest on Judgment bonds. 

A county treasurer has no right to accept less than the full 
amount of the general taxes showTi to be due under the levy and 
assessment made. (7190, 7368, 8804, C. L. '21.) 


To E. C. Risley, Sept. 10, 1933. 
Legal advertising. 

The object of the paper under consideration is primarily ad- 
vertising ; the news therein is incidental; the paper has no regular 
subscribers and is therefore not a newspaper of general circula- 
tion such as is contemplated by the act of 1923. 


To Abe Willey, Sept. 11, 1933. 

Payment of stamp tax. 

Manufacturer, or the first wholesaler or retailer, is primarily 
liable for tax. 

122 Biennial Report 


To O. T. Reedy, about Sept. 11, 1933. 
Live stock driven over newly oiled roads. 

1. The eonstructing engineer is within his rights in attempt- 
ing to prevent or delay the passage of stock over newly oiled roads. 

2. If stock is driven over newly oiled roads contrary to the 
instructions of the engineer or contractor, the owner of the stock 
would be liable to the contractor for the damage caused. 

3. Where a highway is under construction and it is impossi- 
ble to detour traffic, the road official in charge may call upon the 
police officers to assist him in protecting the road from damage. 


To S. E. Walrod, Sept. 13, 1933. 

Contraction of debt. 

Cities and towns may not contract a loan except upon a vote 
of the people at a regular election for officers of the town. (Const. 
Art. XI, Sec. 8.) 

149 INTOXICATING LIQUOR— (Beer License) 

To W. L. Boatright, Sept. 25, 1933. 

Chan^ of location. 

The new law gives a licensee the specific right to have his 
location changed by the proper officials. 


To Theo. II. Rush, Sept. 25, 1933. 

It would be illegal for a county high school board to deposit 
funds to the credit of a third-class school district for the purpose 
of pavinir teachers emploved bv tlic third-class district. (School 
Laws" 1927, Sec. 248.) ' 


To Jackson (\..'}n';in-. Srpt. 27. l!Kr?. 
lAcenne tax. 

Wh'To an insurance company renews its license u|>on applica- 
tion and prior to Jan. 1st ceaijcs to do business in this State, but 
continues in force itK policie.s previously issued, collecting pre- 
miums thereon, stich companv is not liable for the annual license 
tax. (Sec. 2485, C. L. '21.) ' 

Provident Savinjfs Life etc. Co. v. Commonwealth (Ky.), 
230 r. S. 103. 

Attorney General of Colorado 123 


To Judge Sanford, Sept. 27, 1933. 

Investment of, in Home Owners Loan Corporation bonds. 

The Home Owners Loan Corporation is an instrumentality of 
the United States and its stock is owned by the TJ. S. Government. 

The inhibition in Sec. 36, Art. Y of the State Const, does not 
apply to Federal or State agencies. 


To Marie Wickert, Sept. 27, 1933. 

1. It is mandatory that the county commissioners levy taxes 
to pay the mothers' compensation as provided in Sec. 611, C. L. 

2. Benefits provided in Sec. 7A, Ch. 77, S. L. 1923, are to 
be derived from the special levy provided for by Sec. 611, C. L. 

3. County commissioners are not compelled to publish the 
names of recipients of benefits under the Mothers' Compensation 


To State Board of Cosmetology, September 28, 1933. 
Renewal fees for shop licenses. 

Under Ch. 74, Sec. 24, S. L. 1931, whenever a shop renewal 
certificate is granted the statutory fee should be charged. 

To R. G. Parvin, Sept. 29, 1933. 

Fines under game and fish law. 

No warden, deputy, assistant, or any other employe of any 
department, institution or agency of the state whose compensation 
is specified can legallv receive anv part of the moneys collected 
as fines under the Game and Fish Law. (S. L. 1933, Ch. 37, 
S€C. 7.) 

156 LIQUOR LAW— Alcohol 

To G. E. Ellsworth, Sept. 29, 1933. 

Importation of Alcohol H. B. 9, Ex. S. G. A. '33. 

A permittee under the Medicinal Liquor Law may import 
alcohol to be sold at retail without an additional license. 

124 Biennial Report 


To Mr. Charles Ross, Oct. 2, 1933. 

Diseiission of Rights of Way; Construction Contracts and 
Preference Laws; Commercial Vehicles in Interstate Commerce, 
Reciprocity ; Control of Obstructions on Highways. 


To Jackson Cochrane, October 2, 1933. 
Deposit of bond. 

An insurance company incorporated in a foreign country is 
not required to deposit a bond covering its liability under policies 
of workmen's compensation insurance issued by it in this state. 
Bank of Augusta v. Earle, 13 Pet. 519 ; 
Sec. 2550, C. L. 1921, as amended by Ch. Ill, S. L. '33. 


To C. W. Postlethwaite, Oct. 3, 1933. 
Medicinal Liquor. 

Intoxicating liquors for medicinal purposes may be sold by 
a wholesale druggist only to duly licensed retail druggists, and 
not to doctors. 

Ch. 11, Sec. 2, Ex. S. L. '33. 


To J. E. Furlong, Oct. 3, 1933. 
Clearance lights. 

The question as to whether or not the standards for clearance 
lights should be the same as for the reflector type of tail lights, 
is one of rea5?onable regulation and for determination by the State 
Highway Department. 


To P»arl)or Kxanniiers, Oct. 4, 1933. 
Hulefi governing hcHooIn and collegen. 

Under (^h. 64, S. L. 1929. amending Act of 1909, the State 
iioard of Barber Examinci*s has authority to regulate barber 
schools and colleges. The rules attached are lawful and proper. 

To L. E. Langdon, Oct. 4, 1933. 

1. Brewer maintaining warehouse in another town must have 
additional wholesale license. 

2. Agent merely soliciting orders not required to have a 
wholesal* license. 

Attorney General of Colorado 125 


To Jackson Cochrane, October 4, 1933. 

Sec. 2604, C. L. 3 921, limiting classes of beneficiaries in fra- 
ternal benefit societies does not apply to foreign societies domiciled 
in this state. 

Ross V. Brotherhood, 80 Colo. 344, 348 ; 

Mund V. Rebaume, 51 Colo. 129 ; 

3 Cooks Corporations (last ed.) 2803, citing 

People V. Fidelity Co., 153 111. 25. 

164 GOVERNOR— Powers of 

To Governor Johnson, October 6, 1933. 
Termination of indeterminate sentences. 

Under the terms of Sec. 9, Administrative Code 1933, the 
Governor ''shall exercise all the rights and powers and perform 
all the dnties vested and imposed by law in and upon the Colo- 
rado Board of Corrections * * *" and has the authority to act 
on his own initiative upon the recommendation of the Board of 
Visitors (Adm. Code) to terminate a sentence and release a pris- 
oner, pursuant to the provisions of Sees. 7124 and 779, C. L. 1921. 


To Geo. M. Bull, Oct. 9, 1933. 

Re: App. for Federal Aid for construction. 

1. Application of the Governor for a grant is made pursu- 
ant to the provisions of Ch. 2, S. L. '33 Ex. Session. 

2. Ch. 2, S. L. '33 (Ex.), is valid and constitutional and 
is within the scope of the call for the extra session of the legisla- 

3. Said act provides for an appropriation of $300,000.00 
for acquisition of land and construction of buildings necessary at 
the State Hospital, and is declared to be of the first class. 

4. There are adequate funds available for the payment of 
said appropriation. 

5. The Colorado State Hospital at Pueblo is a state insti- 
tution within the provision of Sec. 1, Art. 8 of the Constitution, 
and is created by the provisions of Sees. 573-582, C. L. 1921, and 
in accordance therewith the Gen. Assembly has the power to make 
such appropriation. 

6. Under the provisions of Sec. 5 of said act the Governor 
is authorized to make application to the Federal Emergency Admin- 
istration of Public Works for grants to aid in the payment for 
labor and materials in the construction of buildings authorized, 
and said moneys when received, are lawfully appropriated for 
said purpose. 

126 Biennial Report 

To J. M. Meikle, Oct. 11, 1933. 

Must be administered by County Commissioners. 

The Emergency Relief Fund provided for by Ch. 14, page 
94, Ex. S. L. '33, must be administered by the county commission- 
ers and cannot be delegated to any outside organization, but there 
is no legal prohibition against the county commissioners cooper- 
ating with and making use of any information obtained from any 
proper relief organization and receiving its recommendations as 
an aid to the commissioners in properly expending the relief fund. 

To Florence A. Wilkins, Oct. 11, 1933. 

If there is no newspaper in the county that is available and 
will publish the delimiuent tax list the publication could be made 
in the manner authorized by Ch. 161, S. L. 1923 — that is, by posting 
in conspicuous places. 

Inasmuch as the situation outlined might affect the legality 
of the tax sale, as well as the bond of the county treasurer, the 
safer course is to secure an official opinion from the district at- 
torney, who, under the provisions of Sec. 5978, C. h. 1921, is made 
the legal adviser of all county officers. 

To C. A. Lory, Oct. 12, 1933. 

Re: Sec. 7, Adm. Code and State A«;ricultural College. 

1. Where members of faculty teach part time in the college 
proper and part tinv for the Experiment Station, receiving sal- 
aries paid in part out of funds appropriated to the college and 
in part out of funds appropriated for the experiment station, there 
is no violation of See. 7 of the Adiniiiistrative Code because See. 
HI 08 recognizes the exi)eriment station as an integral part of the 
eollege itself. (S. L. 33, Ch. 37, See. 7.) 

2. The same applies to the payment of the salary of the presi- 
dent who is i)aid partly out of eollege apj)ropriation and partly 
out of funds appropriated for the Fort Lewis School, because the 
Fort Lewis School is part of the Agricultural Collejre system. 
(Sec. 8145, C.L. '21.) 

3. In re: Director of Kxperiment Station who is also profes 
sor of horticulture at the college and State Horticulturist. (Sec. 
3088, 3089, C. L. '21; S. L. 1927 Ch 113/1 

Attorney General of Colorado 127 


To H. F. Bedford, Oct. 12, 1933. 
Administration of Motor Vehicle Theft Law. 

Sec. 1380, C. L. 1921, constitutes a continuing: appropriation 
of not to exceed $10,000 for carrying on the activities of the Sec V. 
of State in administering the Motor Vehicle Auto Theft Law ; how- 
ever, if the receipts accruing to said appropriation do not amount 
to $10,000 a 3^ear, the expenditures are limited to the actual re- 
ceipts available. 

Ch. 136, S. L. 1925, established an ''Auto Theft Fund" which 
was expressly abolished by Ch. 103, S. L. 1927, and the Secretary 
of State is confined in administering this law to the items specifi- 
cally appropriated in the General Appropriation Bill. 


To State Board of Chiropractic Examiners, Oct. 13, 1933. 

Salary of secretary. 

The salary of the Secretary-Treasurer of the State Board of 
Chiropractic Examiners must be included within the $750.00 al- 
lowed by Sec. 15, Ch. 49, S. L. 1933, for the expenses of his office. 


To Ira Richardson, Oct. 13, 1933. 
Loan from Federal Government. 

The Adams State Normal School is a governmental agency 
of this State Avithin the meaning of Sec. 2 of Ch. 16, Ex. Session 
Laws '33, which authorizes government agencies of the State to 
contract loans from the Federal Government under the N. I. R. A. 
Act of '33. 

Under the doctrine laid down in Shields v. Loveland, 74 
Colo. 27, a loan contracted by a State institution payable solely 
out of net revenues derived from the investment of the proceeds 
of such loan, is not a debt within the constitutional or statutory 
limitations imposed upon the State or its institutions. 


To Jackson Cochrane, Oct. 14, 1933. 

Retaliatory Law. 

Sec. 2550, C. L. 1921, commonly known as our retaliatory law 
did not require the filing of an indemnifying bond by foreign in- 
surance companies w^riting workmen's compensation insurance in 
this State. This section was amended by Ch. Ill, S. L. 1933. The 
amendatory act expressly provides that where the laws of a for- 

128 Biennial Report 

eign state exact the filing of an indemnifying bond by Colorado 
companies doing business in that State, this State may exact a 
similar requirement. 

It appears that the statutes of New York require a Colorado 
company writing workmen's compensation insurance in that state 
to file an indemnifying bond. The question that arises under the 
above statutes is whether or not a New York insurance company 
which wrote and now has outstanding a policy of workmen's coaii- 
pensation insurance issued prior to the amendatory act of '33, 
and which is not now writing or intending to write workmen's 
compensation insurance in this state, should be required to file an 
indemnifying bond. 

The original act in force at the time this outstanding policy 
was written did not require the filing of an indemnifying bond 
and, inasmuch as the laws of New York require the filing of such 
a bond only in case of the actual issuance of policies of workmen's 
compensation insurance, it is held that a foreign company need 
not, under the amendatory act of 1933, file a bond on account of 
the single policy of compensation insurance already outstanding. 
This ruling also applies to deposits of securities. 

To E. L. Reginetter, Oct. 14, 1933. 

County levy for schools. 

The board of county commi!^sioners must levy taxes for school 
districts as certified to them according to law. 

The local Government Budget does not vest the board of county 
commissioners with any additional authority concerning the fiscal 
affairs of school districts. 

Commissioner vs. School District. S2 Tolo. 438. 


To L L. Quiat, State Counsel, H. O. L. C, Oct. 14. 1933. 
Home Owner's Loan Corporation. lionds in payment of. 

Since there is no specific or const ilutional provision authorizing: 
the acceptance of nuinicii)al bonds issued by the Home Owner's 
Loan Corporation in ])ayinent of ireneral or special taxes, such 
bonds cannot be received under the law for such ])ur])o,ses. (Sec. 
7309, 1991, C. L. 1921 ; Ex. S. L. 1933, p. 92.) 

To IL F. Bedford, Oet. 16, 1933. 

Repayment of loan to complete Mackey Auditorium. 

The State Trrjisiirer is not called tipon to attempt to force the 
repayment oi the fuiuls appropriated under Ch. 72, S. L. 1911, for 
the completion of the Mackey Auditorium. 

Attorney General of Colx)rado 129 


To Charles A. Lory, Oct. 16, 1933. 
Revolving Fund. 

The Agricultural College may not set up a revolving fund con- 
sisting of federal moneys in addition to the $1,000 revolving fund 
allowed the institution by statute. 


To R. H. McNeal, Oct. 21, 1933. 
Re: State Aid. 

Where the tax levy for county general fund has reached 5 
mills, no additional apportionment under Ch. 165, S. L. '29 (Sec. 2, 
par. 4) can be allowed by the county superintendent; nor can an 
additional levy be made by the county commissioners ; therefore the 
county cannot legally draw state aid for additional teachers. 


To James A. Savage, Oct. 21, 1933. 
Manufacturing sites. 

1. Sites upon which manufacturing plants are located upon 
agricultural lands, suburban lots and town lots as real property, are 
entitled to the 10% reduction provided for in the resolution of the 
Equalization Board at its October, 1933, meeting. 

It is immaterial how the so-called personal property is classi- 
fied, if it constitutes fixtures it is entitled to the reduction (Gibson 
V. McNichols, 51 Colo. 54). 

2. As to what constitutes fixtures in a particular instance, the 
county assessors have the right to consult legal counsel, in case 
there is doubt, and each case must be decided upon its own facts. 

3. Sites and improvements of beet dumps constructed upon 
agricultural lands are to be classified as improvements and are en- 
titled to the reduction. 


To Sen. Costigan, Oct. 24, 1933. 
Re: Grand Mesa License. 

1. The State Game and Fish Commissioner had authority 
under Sec. 1469, C. L. 1921, as it read in 1909 and 1929, to issue 
a Class A license for keeping and propagating fish in private lakes, 
where such lakes were on land under private ownership. 

Sec. 1469 was amended by Ch. 99, S. L. 1931, which thereafter 

130 Biennial Report 

confined issuance of license to lakes on land under private owner- 

2. After a Class A license has been properly issued the State 
Game anrl Fish Commissioner has no authority to modify its terms, 
but does have authoritv to revoke it for the reasons and on the terms 
set forth in Sec. 1451,^ C. L. 1921. 


To Jas. W. Creamer, Oct. 25, 1933. 

Salary of Secretary of Board. 

The Board of Chiropractic Examiners Fund may be used to 
defray all expenses reasonably incident to the carrying out of the 
provisions of the Act. (S. L.'l933. Ch. 49). 


To Strickler & Wendelkin, Oct. 27, 1933. 

Application of Local Government Budget Act. 

Since the Local Government Budjxct Act (Ch. 125, S. L. 1933) 
did not become effective until Sept. 6, 1933, school districts whose 
fiscal year beirins July 1 and ends June 30, would not be affected 
by the terms of the act until 1{)34. 


To Olive E. McComish, Oct. 28, 1933. 
County Superintendent's supplies. 

The County commissioners are rerniircd by law to furnish 
necessary office supplies to county suiieriiitcudcnts of schools, the 
expense to be paid from the county fund. 


To Om-e McComish, Oct. 28, 1933. 

Transportation of pupils to parochial schools. 

TIh' Board of <lirc(tors of a school district has no authority to 
flraw warrants upon public funds in payment for transportation of 
school childrc!! to parochial schools. 


To Walt-r H. Johnson, Oct. 31, 1933. 

Releane of inmaten. 

Court of record has authority to modify or vacate a judgment 
entered during the term at whicli the original was entered (60 Colo. 

llTil I Tl"''''<' '»^ ^imii- ill \ i-isit \- tiC I mill lull .ms t n 1 lir ;i l| t In il'if \ iif t hi' 

Attorney General of Colorado 131 

court in a criminal proceeding to vacate the judgment after execu- 
tion has commenced, even during the same term. 

*'As a general principle, however, the judgments, orders and 
decrees of courts are under their control during the term for which 
they are rendered and may be set aside or modified as law or jus- 
tice may require. ' ' 

Ex parte Lange, 18 Wall, 163, 1 Bish. Crim. Pr. 129. 


To Jackson Cochrane, Nov. 2, 1933. 

Foreign Companies. 

An insurance company which has been licensed to do business 
in this state and afterwards ceases to do business in the state, still 
remains authorized to transact business, and unless it has become 
defunct in the state in which it was incorporated, it still exists as a 
foreign corporation in Colorado and may re-engage in business upon 
the filing of proper documents and paj^ment of fees. 


To Jackson Cochrane, Nov. 2, 1933. 

Home Owners' Loan Corp. Bonds deposited as capital. 

Insurance Commissioner is required by Sec. 1 of Ch. 13, Ex. 
S. L. 1933, to accept bonds of the Home Owners' Loan Corporation, 
as capital deposit by insurance company. 


To A. J. Morley, Nov. 3, 1933. 

In case of charges for violation of the provisions of the Real 
Estate Brokers Act a hearing should be had in the county in which 
the alleged offense was committed. (S. L. 1925, Ch. 147). 


To H. F. Bedford, Nov. 7, 1933. 

15c fee to County Clerks under Motor Vehicle Act. 

The fee of 15 cents authorized by Sec. 14 to be paid by county 
clerks for clerk hire, outside of Denver, has not been repealed. 
(Motor Vehicle Act, Sec. 14, 26). 


To B. F. Stapleton, Nov. 7, 1933. 

Per diem of Secretary-Treasurer of Chiropractic Board. 

Sec. 7 of the Administrative Code, 1933, forbidding the pay- 

132 Biennial Report 

ment of salaries in more than one capacity, does not prohibit the 
payment to the Secretary-Treasurer of the State Board of Chiro- 
practic Examiners of the $10 per diem payable as a member of 
the board, in addition to his salary as Secretary-Treasurer, as S. L. 
1933, p. 372 is specific and was passed after Code Bill. 


To H. P. Bedford, Nov. 10, 1933. 
Refund of U. R. tax. 

The treasurer will suffer no liability on his official bond in 
making this refund to persons who paid tax under unconstitutional 


To J. R. McClelland, Nov. 13, 1934. 
Voting rights of members. 

The voting rights of members of class entitled to vote are 
governed by Art. II, Sec. 14 of the Building & Loan Code and not 
by Art. Ill, Sec. 5. 


To Executive Council, Nov. 14, 1933. 
Classification of, 

Appropriation for unemplovment relief is a first class appro- 
priation (Ex. S. L. 1933, Ch. 9; Sec. 288, C. L. 1921). 


To Adolph Unfug, Nov. 14, 1933. 
Registration of warrants. 

It is tlie duty of a city treasurer to register all warrants pre- 
sented to him for payment, in the order of their preaentatiim^ when 
there is no monev on hand with which to meet them. 

Sees. 3780, 9142, 9143, 9145, C. L. 1921. 


To Homer P. Bedford, Nov. 17, 1933. 
Withdrawal of Funds. 

The Daily Deposit Law (Ch. 147, S. L. 1913; Sees. 335-342, 
pp. 2H9-290, S. L. 1921) supersedes Sec. 8016. C. L. 1921, concern- 
ing? withdrawals from the state treasury of fluids helonprinp to the 
Colorado School of Mines. The funds of that institution should 
remain in the State tnasury siihjeet only to the riirht of the insti- 
tution to m«i?'*.ti'> ;i revolving fuml nf nnf to rxcei-d $1000.00. 

Attorney General of Colorado 133 


To J. R. McClelland, Nov. 17, 1933. 

Republic Building & Loan Association. Change of objects by amendment. 

The amendments changing the name and object clauses of the 
original certificate of incorporation of the association in question, 
were unlawful and in direct violation of Sec. 10, Ch. 70, S. L. 1931. 
The said amendments should be ignored and the Commissioner 
should proceed upon the assumption that Association is in existence 
and has failed to comply with the provisions of the B. & L. Code. 
(S. L. 1931, Ch. 70). (Procedure outlined). 


To C. M. Armstrong, Nov. 18, 1933. 

Payment of fees. Amendment of articles. 

Sec. 4, Art. 9, Ch. 47, S. L. 1933, should be given a literal con- 
struction and the amendments should be filed without demand for 
payment of the usual fees, upon satisfactory proof that the associa- 
tion has paid the fees provided for under said section. 


To W. R. Freeman, Nov. 20, 1933. 

Regulation in Home Rule cities. 

The control and regulation of dairy products is intended to 
promote public health and welfare and general public interest and 
may properly be the subject of legislation by the State; and City 
ordinances in conflict therewith are thereby superseded. (Ch. 65, 
S. L. 1933; Const. Amdt. XX; 83 Colo. 329). 


To Gov. Johnson, Nov. 23, 1933. 

Transfer of inmate. 

Governor, by Executive Order, may transfer, temporarily, an 
inmate of the State Reformatory to the State Penitentiary upon its 
satisfactorily appearing that the facts and circumstances exist as 
set forth in *Secs. 1 and 2, page 259, S. L. 1927. 


To C. G. Dowling, Nov. 23, 1933. 

Refund of, to State Hospital. 

In view of the fact that less than 3% of the inmates of the 
State Hospital for the Insane are paying patients the hospital 
steward would be justified in making affidavit that the supplies 

134 Biennial Report 

purchased for the ''poor and indigent" Avithin the meaning of the 
language of Art. 32, Reg. 81 of the Agricultural Adjustment 
Act, and asking refund of processing tax. 

To E. H. Ellithorp, Nov. 23, 1933. 
Additional levies. 

1. Application must be made to the Tax Commission each 
year that an increase over the statutory mill levy is needed. (Sec. 
7204, 7208, 7214, 7216, 7217, C. L. 1921.) 

2. County commissioners have the power to make a levy of 
not to exceed 5 mills, to take up unpaid county warrants drawn 
upon any fund. (Sec. 8853, C. L. 1921.) 


To Frank Fehling, Nov. 27, 1933. 
Local budgets. 

1. It is the mandatory duty of the county ])oard to levy 
annually a sufficient tax to fully discharge and ultimately redeem 
county bonds. (Sec. 8843, C. L. 1921.) 

2. If the county budget is filed with the Tax Commission 
before it has been adopted by the county board, it can be with- 
drawn, or an amended and revised budget can be adopted and 
filed at any time before the beginning of the fiscal year. (Sec. 6, 
Ch. 125, S. L. 1933.) 

4. Counties are specifically given the power to provide a 
contingent fund by Sec. 7204, C. L. 1921. 

5 and 6. Whether or not the county treasurer or commis- 
sioners or their bondsmen would be liable if they permit ex- 
penditures in excess of appropriation, would depend on the par- 
ticular facts. 

7. The status of the official bonds filed by county treasurers 
and board members is not affected by Sec. 10, Ch. 125, S. L. 1933, 
the form of said bonds being fixed by law. (Sees. 8791 and 8720, 
C. L. 1921.) 

Supplementary letter Dec. 7. Advisory as to use of form of 
Budget (No. 1510) prepared by Out West Ptg. & Stat'y Co. of 
Colorado Springs. 

T(. .Jackson Cochrane, Nov. 27, 1933. 
Hypothecation of 8ecuritie«. 

As a general projxisition domestic insurance companies have 
the poucr, as afi incident to the transaction of their busin(»ss. to 
hypothecate inveHtments owned by them; and under many 
statutes cited and (piotcd from, mutual insurance companies have 
the same powi-r. M'ilinir many cases.) 

Attorney General of CoijOrado 135 


To J. R. McClelland, Nov. 28, 1933. 

Members of, holding other positions. 

The position of special deputy in the Building and Loan De- 
partment is an employment and not a civil office, and not within 
the prohibition contained in Sec. 8, Art. V, or Art III of the Consti- 


To Dr. Coolbaugh, Nov. 28, 1933. 
Bond on Trust Funds. 

The money on deposit in the Colorado National Bank col- 
lected from students for breakage of equipment may be con- 
sidered a trust fund and it is proper to pay out of said fund an 
amount sufficient to pay the premium on a depositary bond to 
protect the fund, and to deduct the amount of this premium be- 
fore the money is turned over to the state. 


To Jerre F. Moreland, Nov. 29, 1933. 
Employment of teacher to teach in another district. 

The Board of Directors of a school district is not authorized to 
employ a teacher to teach in another district and to certify the 
amount of his salary to the county superintendent for payment 
from the general countv school fund. (School Laws, 1927, Sec. 294; 
68 Colo. 422). 

206 LIQUOR LAW— Medicinal Purposes 

To Arthur D. Baker, Dec. 5, 1933. 

H. B. 9, Ex. Session, '33. 

Medicinal liquors should not be sold except upon prescription 
of a regularly licensed ph3^sician. 

207 APPROPRIATIONS— Continuing 

To H. F. Bedford, Dee. 6, 1933. 
Additional help; increase of salaries. 

Sec. 10, Ch. 140, S. L. 1933, constitutes a continuing appropria- 
tion for the expense of collecting the motor fuel tax levied in said 
chapter, and the State Treasurer in administering the Act is not 
confined to the items appropriated in the General Appropriation 
Bill but with the approval of the P^xecutive Council he may ex- 
ceed such items if necessarv. (S. L. 1933, Ch. 37; S. L. 1931, 
Ch. 53). 

136 Biennial Report 


To J. R. McClelland, Dec. 6, 1933. 

Collection of penalties. 

The purpose of Par. 2, Sec. 11, Art. IX, Ch. 47, S. L. 1933. is 
to aid in the proper, orderly and prompt conduct of the Commis- 
sioner's office, and the enforcement of the penalty for failure to file 
annual reports punctually is discretionary so far as the commis- 
sioner is concerned. 


To Chas. D. Vail, Dec. 6, 1933. 

Question: Whether trucks should be licensed on carrying capacity or on 
manufacturer's rated capacity. 

1. The law contemplates licensing on carrjdng capacity. 

2. The law is well settled that a public officer or employe may 
not be held answerable in damages for injurj^ which may occur to 
anyone violating the law. 

3. The State may not be held liable for any damage which 
might occur to a trucker who is required to unload his truck down 
to the maximum load limit for which the truck has been licensed. 

Speyer v. School Dist., 82 Colo. 534, 538. 
Eastenes v. Adams, et al., 25 Pac. (2nd) 741. 
See also letter of Nov. 24, 1933. in Highway Miscellaneous File, 
copy attached hereto. 

To M. C. Hinderlider, Dec. 9, 1933. 

Ch. 8, S. L. 1933, makes no specific appropriation for investi- 
gation and study in connection, with the South Platte River Basin, 
but by its title and text it clearly indicates that its general purpose 
is to provide for the protection and to promote the conservation of 
the water resources of the State. It would be entirely proper to 
pay the expense of investif^atioiis made for the purpose of deter- 
mining the feasibility of diverting water from the Colorado River 
to the South Platte River Basin for beneficial use in said basin, 
from the appropriation made for the Colorado River. 


To R. F. Lolxleil, D.-c. 11. 1933. 

Payment of inspectors. 

Inspeetors may be paid from either the Stock Inspection Fund 
or the Brand Inspection Fund, as designated by vouchor. (Sec. 
3177, C.L. 1921.) 

Attorney General of Colorado 137 


To H. A. Tiemann, Dec. 16, 1933. 

Apportionment of Appropriation. 

Neither Sec. 32, Ch. 8, S. L. 1933, nor the National Vocational 
Education Act requires that the State appropriation be apportioned 
on a population basis to the school districts maintaining vocational 
classes, and said moneys may be allotted in. such a way that each 
class of vocational education will be reimbursed 50%, the additional 
50% having been raised locally by the school district receiving state 
and federal money. 


To James M. Noland, Jan. 3, 1934. 

Re: Amusement or gambling devices. 

Under Sec. 6864, C. L. 1921, the use of any device or apparatus 
to win or obtain anything of value, is gambling. (12 R. C. L. 713; 
27 C. J. 1003). 


To F. W. Frewen, Jan. 3, 1934. 
In re: Pees. 

1. Renewal fees for license must be paid during the month of 
July of each year; failure to pay revokes license; licensee is con- 
sidered unlicensed until renewal fee is paid ; payment automatically 
reinstates license. 

2. Under Sees. 4688-89, C. L. 1921, the fee for taking exam- 
ination is $10.00; for issuing certificate, $15.00. There is no pro- 
vision compelling application for certificate. 

3. Every member of a corporate group must have a license 
to practice architecture. 


To C. H. StcAvart, Jan. 4, 1934. 

Assignment of by County. 

January 4, 1934. 
Mr. C. H. Stewart, 
Deputy District Attorney, 
Delta, Colorado. 
Dear Sir : 

In reply to your inquiries of December 12, 1933, concerning 
sales for delinquent taxes, we will discuss the questions which you 
ask in order. 

1. How and by whom shall the tax purchaser be designated ? 

138 Biennial Report 

When land has been bid in by the county for delinquent taxes, 
the tax sale certificate for such land may be assigned by the county 
treasurer for delinquent taxes plus interest and penalties, or for 
such sum as the Board of County Commissioners may designate. 
Section 7422, C. L. 1921. But the Board has no power to desig- 
nate the individual to whom the certificate may be assigned. 

Empire Ranrk & C. Co. v. Neikirk, 23 Colo. Ap. 392; 
Thompson v. Bd., 91 Colo. 214. 

2. May the tax purchaser be the owner of the property de- 
scribed on the tax certificate, the owner's agent, the mortgagee or 
other person having equity? 

The owner of property may not purchase his own property at 
a tax sale directly or through an agent. This would merely amount 
to payment of taxes due. 

A mortgagee may generally purchase at a tax sale, but a per- 
son who IS under obligation to pay taxes on land maj^ not acciuire 
title or improve his title by allowing the taxes to remain unpaid and 
purchasing at the resulting tax sale. 

Hunt V. Schneider, 61 Colo. 104, 106. 

Cone V. Wood, 108 La. 260, 75 Ann. St. Rep. 223. 248. 
(exhaustive note) 

Also one who stands in the relation of trust and confidence to 
the owner of property cannot acquire adverse title thereto by the 
purchase of a tax certificate and pavmcnt of taxes. 
Charles E. Gibson v. EIze^'^H Colo. 181. 

This office ha^j held that, when the owner of land allows his land 
to be sold for nonpayment of taxes and it is bid in by the county, if 
the Board of County Coniinissioncrs tlie?*eafter fixes a price, less 
than tho taxes due, for which the tax sale certificate may be a.s- 
signed, tlie owner cannot by purchasing \ho certificate at such a 
price extinguish the counties' lien for taxes dne. We enclose a copy 
of an opinion to Mr. C. Ray Monson, written June 20, 1933, upon 
this subject. 

3. Has the tax purchaser who has bought a tax sale certificate 
at a (lisr-ount the rigli* to coMect full re(lemption value from the 
owner of property? 

If the sales upon whicli tlic certificates are based are valid the 
lien of the county ha< l)ecn extinguished, then the owner who re- 
(h'eins must j)ay over the full nMJj'uiption value, tiiat is., all delin- 
cpient taxes plus interest and penalties as reijuired bv Section 7430, 
C. L. 1921. 

If, however, the «ale8 were void for some irregularity or other- 
wise the purchaser took notliing but a lien to the extent of payments 
made plus H% interest. If the owner redetMus he nuist pay this 
amount and gets cre<lit for the money paid. Only so much of the 
tax is discharged as is covered bv the monev actuallv received bv 

Attorney General of Colorado 139 

the county. See the case of Ireland v. Coal Ca., 87 Colo. 193, at page 
198 to this effect. 

4. If the tax purchaser sells a certificate which he has pur- 
chased from the county to the propertj^ owner granting said owner 
the benefit of the discount, is the latter then entitled to redeem by 
surrender of certificate and payment of the usual cash fee? 

Our answer to this question is. No. Under the reasoning of 
the cases cited in the Monson opinion, the owner of land can only 
extinguish the lien of the county for taxes due upon his land by 
payment in full. Redemption can onlj^ be made in the statutory 
manner. Section 7430, C. L. 1921, requires payment '^of the amount 
for lohich the same (property in question) was sold with interest 
together with subsequent taxes paid by the purchaser and endorsed 
upon the certificate." The sale refered to, here, is the original sale 
for delinquent taxes — in this case, the sale to the county. 

5. What is the authority and responsibility of the County 
Treasurer in assigning tax sale certificates under orders from 
County Commissioners? 

The Board of County Commissioners can set the price for 
which the certificate may be sold but cannot restrict the sale to a 
designated person or groups of persons. See discussion under the 
first question, supra. 

Respectfully submitted, 


Attorney General. 

Assistant Attornej^ General. 
(See opinion to C. Ray Monson, June 20, 1933, and to C. S. 
Ickes, March 19, 1934.) 


To C. S. rckes, Jan. 4, 1934. 
Bond Redemption Fund. 

Moneys in the bond redemption fund of a school district cannot 
be used for the purchase of bonds issued by another school dis- 
trict. (Sec. 8371, C. L. 1921). 


To B. F. Stapleton, Jan. 4, 1934. 

Governor's employes; past due salaries. H. B. 273, 274, Ch. 156 S. L. '31. 

E. Schradsky and Jackson. It was the intent of the legis- 
lature to include the above named employes within the provisions 
of Ch. 156, S. L. 1931, and warrants may be drawn upon vouchers 

140 Biennial Report 

covering salary increases past due, for which appropriation was 
made by the 29th General Assembly. 

See also letter in Re : Mrs, Schwartz and Harry Polk, attached 
to above opinion. 


To F. E. Spencer, Jan. 5, 1934. 
Interest on taxes. 

Under Sees. 7191 and 7386, C. L. 1921 as amended by Ch. 183, 
S. L. 1933 the first half of the tax draws interest at 6% from 
Mar. 1 to Aug. 1, and thereafter the whole tax draAvs interest at 
8% until sale. 


To Royal I. Fisher, Jan. 9, 1934. 
Traveling expenses. 

Where the General Assembly, pursuant to joint resolution, 
takes a recess for a considerable period of time, the members there- 
of are entitled to their actual necessary traveling expenses in re- 
turning to their homes and thence to the State capitol upon re- 
convening. (Art. V, Sec. 6.) 


To N. D. Bishop, Jan. 11, 1934. 
Employes* per diem during recess. 

Employes of General Assembly are not entitled to per diem 
compensation during the period of the recess. (Sec. 8, C. L. *21.) 


Homer F. Bedford, Jan. 11, 1934. 

State funds deposited in member banks of the Federal De- 
posit Guarantee Assn. are sufficiently protected, up to .^2,500.00 
in each bank. 


To Toller Ammons. Jan. 15, 1934. 

Liquor legislation not within. 

Althoujfh purportinpr by its title and preamble to be in the 
nature of a revenue measure, tlie ])il] proceeds to provide in detail 
for the establishment of an elaborate system for repulatinp the 
nianufaeture. sale and use of intoxieatinp licpiors and the creation 
of a new state aj?ency therefor, and is not within the call. 

Under Colorado Constitution no laws may permit establish- 
ment of Raloons. 

Attorney General op Colorado 141 


To Gladys E. Cook, Jan. 16, 1934. 
Issuance of certificates. 

Persons in the actual and continuous practice of cosmetology 
on the date of the passage of the Act, May 16, 1931, may have 
three years from the date of the passage of the act, or until May 16, 
1934, to make application for a certificate to practice. (S. L. 1931, 
Ch. 74.) 


To Bert Keating, Jan. 17, 1934. 

Proposed legislation not within. 

Primary object of bill being regulation of insurance com- 
panies, and not as purported by its title, a revenue measure, act 
does not fall Avithin Governor's Proclamation. 


To B. F. Stapleton, Jan. 18, 1934. 
Printing Commissioner; Purchasing Agent. 

1. Sec. 5411, C. L. 1921, providing for payment of Printing 
Commissioner, constitutes a continuing Appropriation from the 
General Fund, and warrant covering the salary of Alfred T. May 
as Commissioner of Public Printing may be drawn and paid there- 
from ; 

2. Appropriation having been made by Ch. 9, S. L. 1933, for 
an Assistant Purchasing Agent, the salary of Walter W. Lear, as 
Assistant Purchasing Agent, should be paid according to that ap- 


To W. R. Freeman, Jan. 19, 1934. 
Regulation of dairies outside corporate limits. 

Under Sec. 8987, C. L. 1921, incorporated towns are authorized 
to inspect and prohibit unwholesome dairies within one mile from 
the city limits, but may not license such dairies. (Sec. 9003, C. L. 
1921 ; Denver Mun. Code, p. 692.) 


To V. D. Stone, Jan. 22, 1934. 

Under Sec. 4, Art. X of Colo. Constitution, airports oAvned or 
leased by cities and towns in this State and used for the benefit 
of the municipality are not subject to general taxation. 

142 Biennial Report 

To C. J. McCandless, Jan. 22, 1934. 

Pensions granted to school district retired employes other 
than teachers must be discontinued in districts other than those 
having a school population less than 30,000. 

To S. R. McKelvey, Jan. 22, 1934. 

May not sign death certificates. 

Sec. 978, C. L. 1921, provides that the death certificate shall 
be presented to the attending physician, to the health officer or 
coroner, as directed by the registrar, for the medical certificate 
of the cause of death. 

Under no construction of the word "physician" could a chiro- 
practor be included under the rules of this State. 

Chiropractor has no authority to sign death certificate in 
Colorado. Sec. 978, C. L. 1921. 


H. F. Bedford, Jan. 23, 1934. 

Under specific provisions of the statutes, an Intoxicating 
Liquor License does not include the right to sell 3.2 beer. (Ex. 
S. L. 1933, Ch. 5, Ch. 12.) 


To James Patterson, Jan. 24, 1934. 
By Justices of Peace. 

Justice of the peace may perform the marriage ceremony out- 
side of the county or precinct in which he was elected. (Sec. 5555 
C. L. '2L 38 C.J. 1311.) 


\Vm. Curtis, Jan. 25, 1934. 

Se^reKation of interestfl in tax sale certificates. 

County commisHioners have no power to scjfrcgatc the various 
iutrrcsts in tlio laud rcprrsmtcMl by a tnx snl(» (MTtificnto for the 
|)ur|)()se of a.ssiguiuj; tluit part of the certificate which represents 
the tax on subsurface coal interests. (Sec. 7248, 7416, C. L. '21; 
5 C.J. 894.) 

Attorney General of Colorado 143 


J. P. Mclnroy, Jan. 26, 1934. 
Budget and Eflficiency Commissioner. 

Salary Reduction Act (Ch. 181, S. L. '33) does not apply to 
the office of Budget and Efficiency Commissioner. (Sec. 308 
C. L. '21.) 

234 TAXES 

Gov. Johnson, Jan. 30, 1934. 

Re: House Bill 46 Constitutionality providing for remission of 50% of 
unpaid taxes. 

The Bill is unconstitutional in that : 

1. Does not afford to all delinquent taxpayers the equal pro- 
tection of the laws ; 

2. Contravenes Sec. 3 of Art. X of State Constitution. 

January 30, 1934. 
Governor Edwin C. Johnson, 
State Capitol, 
Denver, Colorado. 

Subject: Question as to constitutionality of House Bill No. 46. 
Dear Governor : 

You have requested the Attorney General's office to examine 
House Bill No. 46, which was recently passed at the Second Extra- 
ordinary Session of the 29th General Asembly and is now under 
consideration by you, and to give an opinion to you concerning the 
constitutionality of this measure without reference to any ques- 
tion that might be raised as to whether or not the subject-matter 
thereof was specially named by you in your proclamation conven- 
ing said Second Extraordinary Session. 

(1) Analysis of House Bill No. 46. 

Referring to House Bill No. 46 in compliance with your re- 
quest, we note that its title is as follows : 

**A Bill for an Act concerning the levy and collec- 
tion of taxes, and to facilitate the payment thereof and to 
grant emergency relief with respect thereto. ' ' 

Analyzing said Bill, we find that Section 1 thereof declares 
that the severe financial and economic depression has made it im- 
posible for many property owners to pay their delinquent taxes 
because of excessive interest and penalties due thereon ; that pub- 
lic revenues have diminished to the extent of imperiling the main- 
tenance of local governments and schools ; and that an emergency 
exists which *' justifies, validates and requires the legislation for 
the relief of delinquent taxpayers and the maintenance of ade 
quate public revenues," as in the Act provided. 

144 Biennial Report 

Section 2 of the Bill provides : 

**Any taxpayer who on or before October 25, 1934, 
shall pay his, her or its 1933 tax in the manner now pro- 
vided by law shall be entitled to pay or redeem any and 
all taxes or tax sale certificates held by the County in 
which said tax was assessed for the year 1931 or prior 
thereto by payment to the County Treasurer of such 
County of fifty per cent (50%) of the original unpaid tax 
Or taxes and for delinquent taxes or tax sale certificates 
for the years subsequent to the year 1931 and prior to the 
year 1933, such taxpayers shall be allowed to pay the 
original tax without the addition of penalties or iiitoi'cst 
for the payment or redemption of said taxes;** 

with the prmnso, however, that — 

"if any property has been sold at any tax sale to any in- 
dividual, firm, association or corporation, the taxpayer 
shall be required to redeem or pay the same in the man- 
ner now provided by law." 

By Section 3 of the Bill it is provided that all County Treas- 
urers receiving the payment of delinquent taxes under the condi- 
tions specified in said Bill shall give receipts therefor "in full set- 
tlement of such taxes, interest and penalties,*' and that "each 
County Treasurer and his sureties are hereby released from any 
and all liability for accepting less than the full amounts due for 
interest and penalties so paid." 

By Section 4 of the Bill it is provided that a complete report 
of all payments made under the provisions of the Bill shall be 
made by the County Treasurer, and conies thereof sent to the Board 
of County Commissioners of the County, the Colorado Tax Commis- 
sion and the Auditor of State; and it is tlieroby further provided 
that the State, the County and each school district and municipality 
shall accept their respective shares of the portions of taxes thus 
collected "in lieu of their respective shares of said taxes the same 
as if said interest and penalties had been paid in full." 

Sction 5 of the Bill contains the very indefinite provision thil 
all Acts and parts of Acts in conflict therewith "arc temporarily 
declared inoperative to the extent necessary to carrj' out the pro- 
visions of the above emergency measures.'* 

Section G declares that the Act "is necessary for the imme- 
diate prrscrvation of the public peace, health and safety**: and 
Section 7 contains the usual emergency clause, and provides that 
the Act "Rhall take effect and be in force from and after its pas- 

(2) Purpose of House BUI No. 46 and persons upon whoin it 
would oprratc. 

Before going into the con.stitutionni (|uestions which your in 

Attorney General of Colorado 145 

qniries raise, it may be well to consider the purpose of House Bill 
No. 46, and how and upon what persons it would operate if it 
became a law. Its declared purpose is to be accepted as true, and 
should be effectuated as the legislative will if that can be done 
without offending against the organic law. That purpose, as so 
declared in Section 1 of the Bill, is ''the relief of delinquent tax- 
payers and the maintenance of adequate public revenues." 

Such relief, as provided in Section 3 of the Bill, is afforded to 
the following classes of persons and is to be obtained in the follow- 
ing manner : 

(a) All delinquent taxpayers, who, on or before October 25, 
1934, pay their 1933 taxes in the manner now provided by law, 
''shall be entitled to pay or redeem any and all taxes or tax cer- 
tificates held by the County in which said tax was assessed for the 
year 1931 or prior thereto hy payment to the County Treasurer of 
such County of fifty per cent (50%) of the original unpaid tax or 
taxes'' ; 

(b) All delinquent taxpayers, who, on or before October 25, 
1934, pay their 1933 taxes in the manner now provided by law, 
shall be allowed to pay the original amount of any delinquent taxes 
or tax sale certificates subsequent to 1931 and prior to 1933, '^with- 
out the addition of penalties or interest for the payment or redemp- 
tion of said taxes"; 

WITH THE PROVISO, however, that in cases where the prop- 
erty of delinquent taxpayers has been sold at tax sales to any indi 
viduaiSf firms, associations or corporal ion>s, such taxpayers "shall 
be required to redeem or pay the same in the manner provided by 

When reduced to its simplest terms it is atpparent that the Bill 
has the effect of favoring certain persons only, viz. : Those delin- 
quent taxpayers whose property has been struck off' to the county 
at tax sales and who pay their 1933 taxes. 

(3) Home Bill No. 46 does not afford to all delinquent tax- 
payers the equal protection of the laws, and is therefore contrary 
to the provisions of the Fourteenth Amendment to the Constitution 
of the United States. 

It is our opinion that, in attempting to provide relief to delin- 
quent taxpayers, House Bill No. 46 does not afford to all of such 
delinquent taxpayers the equal protection of the laws. 

Under the terms of the proviso contained in Section 1, as here- 
inbefore just noted, those delinquent taxpayers whose property has 
been sold at tax sales to individuals, firms, associations or corpora- 
tions would be required "to redeem or pay the same in the manner 
now provided by law." 

The Bill discriminates, therefore, upon its very face, in favor 
of a taxpayer, who, although unable to prevent delinquency by pay- 

146 Biennial Report 

ment, was fortunate onough, (under the provisions of Section 7409, 
C. L. 1921 ). to have his property struck off at tax sale to the County 
in which the tax was assessed, as agfainst another taxpayer whose 
propertv at the same time was struck off to ''an individual, firm, 
association or corporation.'* 

The taxpayer, whose property happened to be struck off to the 
County, would receive the benefit intended to be afforded by the 
Act while his less fortunate neigrhbor, whose property happened to 
be struck off to "an individual, firm, association or corporation," 
would be denied any benefit under the Act and could only redeem 
his property by the payment of the full amount of the original un- 
paid tax or taxes together with accrued interest and penalties. 

Merely to state this example of the practical working of the Act 
demonstrates that, in operating upon delinquent taxpayers of the 
same class, remiffin{j taxes, interest and penalties as to some and 
requirinq fnU jxiymeiit thereof from others, it would not afford to 
all of such delinquent taxpayers the equal protection of the laws. 

The Bill is, therefore, contrary to Section 1 of the Fourteenth 
Amndment to the Federal Constitution, providing that no State 
shall ''deny to any person within its jurisdiction the equal protec- 
tion of the laws." 

Sanderson v. Bateman, 7S Mort. 235, 253 Pac. 1100; 
State V. Fischl, 94 Mont. 92, 20 Pac. (:2nd) 10G7. 

Tn the cases just cited, the Supreme Court of Montana had 
occasion twice to pass upon the validity of measures designed in 
much the same way as by the Bill now under consideration to relieve 
delinquput taxpavers whose property had been sold at tax sales to 
counties and where there had been no assignments of the certificates 
of such .^ales by the counties; and in each instance the court held 
that the measures discriminated in favor of siu^h delinquent tax- 
payers as against those whose property had been sold at tax sales 
to citizens, and, therefore, did not afford to all of such delinquent 
taxpayers the equal protection of the laws. 

Tn other words, if the lawmaking department desires to declare 
a "bargain-day" for the paynunt of taxes, the "bargains" must 
br avaihible to all; it cannot offer them to some delinquent taxpay- 
ers and at the s;ime time withhold them from others. 

(4) Hill rontrarcms' Sect ion .? of Article X of State Consti- 

In S'ciion 3 of Article X, sonw'tiincs referred to as tin' "uni- 
formity j)rovision," of our State Constitution, it is jutn ided, 
among other thingH, as follows: 

"All taxes shall be unih im upnn \Ur same class of 
subjectH within th«' territorial limits of tin* autliority levy- 
ing the tax, and shall be levied and collected under general 
laws." etc. 

Attorney General of Colorado 147 

Our State Constitution contains within itself many evidences 
of the earnest purpose of its framcrs to render impossible every 
form of governmental favoritism. The granting of special privileges, 
the bestowal of favors, the lightening of the public burdens as to 
one citizen at the expense of others, — all of these things are con- 
trary both to its spirit and its letter. So it is declared that **all 
taxes shall he uniform upon the same class of subjects/* (See 
Ollivier v. City of Houston, 93 Tex. 201, 208, 54 S. W. 940, 942). 

Our Supreme Court has said : 

** Uniformity in taxing implies equality in the burden 
of taxation." Leonard v. Reed, 46 Colo. 307, 315. 

But House Bill No. 46 advances a plan which, if it becomes a 
law, would operate to make unequal the burden of taxation by re- 
warding a taxpayer who has not paid his tax at the expense of one 
who has. 

Under the plan now advanced by the Bill here in question, the 
taxpaying citizens who have heretofore paid their taxes and who 
no doubt constitute a large maority of the taxpayers of Colorado 
must suffer for having paid their taxes to the extent that they 
have since been without the use of the money so paid ; while the 
minority, who did not pay, would save by their failure or refusal 
so to pay. 

Such discrimination as between taxpayers in respect to taxes 
that have been levied and assessed upon the same class of subjects 
necessarily implies inequality and injustice, because it would oper- 
ate to impose upon the majority of such taxpayers burdens from 
which a minority thereof are attempted to be relieved. 

To use the language of our Supreme Court in Leonard v. Reed, 
supra, 46 Colo. 307, 316 : 

"This discrimination robs the laws of the indispen- 
sable requisite that taxes shall be uniform upon property 
within the jurisdiction of the body imposing them." 

As aotlv said by ''he Supreme Court of Missouri in the case of 
State V. Hannibal & Si. Joseph R. Co., 75 Mo. 208, 211 : 

*<* # * rpjjg -^gg^ q£ taxation imports the equality 
of apportionment and assessment upon all property. * * * 
And it cannot be doubted that the exemption of the prop- 
erty of an individual or of a private corporation from 
taxation, either in whole or in part, casts an unusual and 
inequitable burden on the property of those who have 
not been thus graciously favored." 

It follows, therefore, in our opinion, that House Bill No. 46 
clearly violates the spirit, if not the letter, of that provision of Sec- 

148 Biennial Report 

tion 3 of Article X of the Colorado Constitution which requires that 
"all taxes shall be uniform upon the same class of subjects within 
the territorial limits of the authority levying the same." 

Leonard v. Keed, S7ipra, 46 Colo. 307 ; 

Ollivier v. City of Houston, supra, 93 Tex. 201, 208, 54 S. 
W. 940, 942; 

Sanderson v. Bateman, supra, 78 Mont. 235, 253 Pac. 1100; 

State V. Fischl, s^ipra, 94 Mont. 92, 20 Pac. (2nd) 1067; 

3 Cooley, Taxation (4th Ed.), Sec. 280, pp. 591-593. 
In this connection Ave note that a law enacted by the Legisla- 
ture of Missouri in 1933, designed to induce and accelerate the pay- 
ment of delinquent taxes by authorizing the remission of the pen- 
alties, interest and covsts accrued upon the same, has been twice 
upheld by the Supreme Court of that State. See State ex rel. 
Crutcher v. Koeln, 61 S. W. (2nd) 751, and State ex rel. McKittrick 
V. Bair, 63 S. W. (2nd) 64. But the act there in question was con- 
fined solely to the remission in whole or in part of ** penalties, inter- 
est and eosts** within a definite period ending December 31, 1933, 
and did not operate, as does House Bill No. 46, to reduce the 
amounts of back taxes. Neither did the act there under considera- 
tion present any question of discrimination such as is presented by 
said House Bill No. 46. 

In Livesay v. DeArmond, 131 Ore. 563. 284 Pac. 166, 68 A. L. 
R. 422, fcited by the Supreme Court of Missouri in State ex rel. 
CrutcJier v. Koeln, supra), the Supreme Court of Oregon held that 
a statute, which provided that a county court, or a board of county 
commissioners, of any county, might waive or reduce the penalty 
or interest imposed for failure to pay taxes within a specified time, 
(if such waiver or reduction would facilitate the collection of taxes), 
was not unconstitutional as violating the provision as to uniform 
taxation. But no question of d-iseriminMon was involved in this 
Oregon case, and the court was careful to sav in its opinion (131 
Ore. 579): 

"It is evident, from what we have said above, that in 
our opinion this act does not authorize county boards to 
remit these charges from one property owner and withhold 
such action from another.*' (Italics ours) 

It is plain that the statutes considered in the Missouri and Ore- 
g^on cases, to which we have just referred, involved no question of 
diserimination among the taxpayers upon whom thoy were made to 
operate, and that the decisions sustaining their constitutionality arc 
not opposed to the propositions hereinbefore discussed that go to 
show the unconstitutionality of House Bill No. 46. 

So, in the respects hereinbefore mentioned, it is our opinion 
that House Bill No. 46 is clearly violative of the Federal and State 
Constitutions: .nid. tlils Ix'iiitr so. it would onlv extend undnlv this 

Attorney General of Colorado 149 

opinion to discuss other questions that arise to challenge in other 
respects its constitutionality. 

(5) House Bill No. 46 is indefinite and uncertain in its pro- 

We feel, however, before concluding this opinion to invite your 
attention to certain major provisions of this Bill which are indefi- 
nite and uncertain, and would lead to inevitable confusion if the 
measure should become a law: 

1st. — The Bill wholly fails to provide any time at or during 
which delinquent taxpayers, paying their 1933 taxes on or before 
October 25, 1934, must pay the taxes accruing prior to the year 1933 
in order to receive the benefit of the relief intended to be afforded 
by the measure. Obviously, the payment of all such delinquent 
taxes accruing prior to the year 1933 should be made contempora- 
neously with the payment of the 1933 taxes, or at least within the 
period specified for the payment of the 1933 taxes and before Oc- 
tober 25, 1934; but the Bill contains no provision whatsoever re- 
quiring the payment of such delinquent taxes at or during this 
time. Under the provisions of the Bill, as presented to you. any 
taxpayer who pays his 1933 taxes on or before October 25, 1934, 
would be entitled to obtain a full settlement of his delinquent taxes 
for the year 1931 and prior thereto, together with interest and pen- 
alties, by paying at any time thereafter fifty per cent (50%) of the 
original amount of such delinquent taxes, and he would also be 
entitled to obtain a full settlement of his delinquent taxes subse- 
quent to the year 1931 and prior to the year 1933 by paying ot any 
time thereafter the original amount thereof -without interest and 
penalties. Under such circumstances it would appear to us that, 
while the Bill might operate to induce and accelerate the payment 
of 1933 taxes, yet the payment of delinquent taxes accruing prior 
thereto might still be indefinitely withheld, without the further 
exaction of interest or penalties thereon, by those so paving their 
1933 taxes. 

2nd. — The Bill, in undertaking to provide by Section 5 thereof 
that all Acts and parts of Acts in conflict therewith are ^'temporar- 
ily declared inoperative to the extent necessary to carry out the 
provisions of the above emergency measures, '^ is so completely in- 
definite and uncertain as, in our opinion, to defeat itself and to leave 
unchanged the existing law. 

In conclusion, let us say that in the very first volume of the 
reports of the Supreme Court of Colorado there is stated this doc- 
trine : 

**It may, therefore, be laid down as a principle of 
universal constitutional law, that the power to X^yy taxes 
is an incident to sovereignty without which no government 

150 Biennial Report 

could exercise the powers delegated to it." (Belford, J., 
in Yi{7iker v. NicholSy 1 Colo. 551, 567). 
So, too, the Suprpme Court of the United States has said: 
''The taxing power is vital to the functions of gov- 
ernment." (Tucker v. Ferguson, 89 U. S. 527, 575). 

Much as we appreciate the fact that the Bill here under con- 
sideration was intended by the General Assembly to alleviate the 
condition of worthy citizens who, because of the existing emergency, 
have be^n unable to pay their taxes, yet, in our opinion, its provi- 
sions have been so framed that its inevitable effect would be seri- 
ously to cripple the taxing power of the State and to thwart its 
exercise in the performance of the functions of government. 

As we see it, the plan advanced in the Bill of favoring some 
taxpayers of the same class over others, as has been hereinbefore 
set forth, is not only contrary to the Federal and State Constitu- 
tions, but would, if carried out, put a premium upon the failure to 
pay taxes, and would thereby impair the taxing power of the State 
which, if the State is to exist, it must exercise during foul weather 
as well as during fair weather. 

Respectfully submitted, 


Attorney General. 
First Assistant Attorney General. 


To 11. F. Bedford, Feb. 1, 1934. 
Compensation of members. 

The Attorney General has no right to question determinations 
of fact by an administrative officer, unless there is a flagrant abuse 
of discretion; and having found none in this instance, it is his 
opinion that the vouchers drawn in payment for the services of 
the mambers of this board should ho i)aid. 

To Doctor Lory, Feb. 2, 19:U. 

Powers of State Board of Agriculture. 

State lioard of .Vgricultuic nuiy lease land to City of Fort 
Collins for municipal airport, with option to Citv to purchase. 
rSoc. .S()03. C\ L. 192L) 

To H. F. Bedford, Feb. 6, 1934. 
Rectifying plant. 

A rectifying plant, making whiskey from aU'ohol. water and 
whiskev, must j)nv a distillerv license. (Ex. S. L. 19.'^3, Ch. 12, 
See. 6(d) 38 C. J OHl ; IS ('..In :IU\; 20 L K .\ 241.) 

Attorney General of Colorado 151 


To John D. Goodloe, Feb. 8, 1934. 
Exemption of Commodity Credit Corp. 

Sections 2305 and 7273 of the Compiled Laws, 1921, are not 
applicable to the Commodity Credit Corporation which is prac- 
tically a governmental agency for carrying into effect the pur- 
poses of the government for national industrial recovery, and is 
therefore exempt from filing the reports required under said sec- 
tions to be filed by foreign corporations operating in this State. 


To C. S. Furrow, Feb. 8, 1934. 

Certificates of titles 

Nonresident owners of motor vehicles must secure certificates 
of title before motor vehicles can be registered in this State. (S. L. 
1925, Ch. 136; S. L. 1933. Ch. 130.) 


To H. J. Gilbreath, Feb. 8, 1934. 

Deputy's power to carry on duties of office. 

Under Sec. 8792, C. L. 1921, Deputy County Treasurer can per- 
form duties of office upon death of Treasurer. 

241 IRRIGATION— (Interstate Compacts) 

To E. C. Johnson, Feb. 9, 1934. 
Benkleman-Haigler-Arickaree Project. 

The only way in Avhich this project could be constructed 
free from legal objection, would be through a tri-State Compact 
between Colorado, Nebraska and Kansas. 


To C. D. Vail, Feb. 9, 1934. 

Licenses for highway trucks. 

All publicly owned motor vehicles must be licensed, including 
highway trucks. (S. L. 1931, Ch. 122, Sees. 27 and 28 ; S. L. 1931, 
p. 485; Atty. Gen. Rep. 1923-24, No. 46.) 


To J. R. McClelland, Feb. 13, 1934. 

Proposed examination of Railway Building and Loan. 

In view of the decree entered in the receivership proceedings 
by the District Court of Pueblo County, and the subsequent dis- 

152 Biennial. Report 

charge of the Receiver, The Railway Savings and Building Asso- 
ciation is subject to the general supervision and control of the 
State Commissioner, just as is any other building and loan associ- 


To Dr. C. C. Casey, Feb. 14, 1934. 

Re: Rig^ht of the Board of Trustees to borrow funds from the Federal 
Government for the purpose of financing the construction and equip- 
ment of a residence for the President of the College. 

February 14, 1934. 
Doctor C. C. Casey, 
President, Western State College, 
Gunnison, Colorado. 
Dear Sir: 

You have requested an opinion from this Department con- 
cerning the right of the Board of Trustees of your Institution to 
borrow funds from the Federal Government for the purpose of 
financing the construction and equipment of a residence for the 
President of your institution, the loan obtained to be repaid, prin- 
cipal and interest, out of the rentals for the use of said residence 
by the President of The Western State College. 

Your institution is one of the several schools in the State of 
Colorado under the jurisdiction of the Trustees of the State 
Normal School. It is technically known as "The Western State 
College of Colorado." It was established under the provisions of 
an act of the Colorado Legislature passed in 1901, entitled "An 
Act to Establish a State Normal School." Session Laws of Colo- 
rado, 1901, paragraph 1, the same being Section 8178 of the Com- 
piled Laws of Colorado, 1921. 

The Board of Trustees is constituted by Section 8164, C. L. 
1921, which reads as follows: 

*'Said schools shall be under the control of a board 
of six trustees; the said board shall be and is hereby de- 
clared a body corporate by the name and style of 'the 
trustees of the state normal school,' and as sueh and by 
its said name may hold property for the use of said 
school, be party to all suits and contracts, and do all 
things thereto lawfully appertaining, in like manner as 
mnnii'ipal corporations of tliis state. The said trustees 
and their successors in oflice shall have i)eri>etual succes- 
sion, shall have a common seal, and nuiy make* by-laws 
and regulations for the well onlering ami government of 
the said corporation and its business not repugnant to the 
constitution an<l laws of the state." 

Section 2 of Hoiiso Bill V.. '7'2 passe<l :it the r« nt I- 

V 1 I'M - 

Attorney General of Colorado 153 

ordinary Session of the General Assembly entitled, **T0 PRO- 
CONSTRUCTION OF PUBLIC WORKS,'* approved and in effect 
August 18, 1933, reads as follows : 

''To effectuate the purposes of this Act, counties, 
cities, towns, school, irrigation, drainage or sewerage dis- 
tricts. Federal Reclamation projects and water users 
Board of Control thereof, the Colorado State Fair Com- 
mission, other political subdivisions, or governmental 
agencies of this State, are hereby authorized, until Janu- 
ary 1, 1935, to undertake a program of public Avorks, 
which may include among other things the following: 
(a) the construction, repair, and improvement of public 
highways and parkways, public buildings, and any pub- 
licly owned instrumentalities and facilities; (b) the con- 
trol, utilization and purification of water and extension 
and improvement of existing municipal water Avorks ; (c) 
the construction of irrigation, drainage, or sewerage dis- 
posal projects; (d) the construction, reconstruction, al- 
teration or repair, under public regulation or control of 
low-cost housing and slum clearance projects; (e) the 
construction of any other projects of any character 
eligible for loans under the provisions of the Acts of Con- 
gress known as the Emergency Relief and Construction 
Act of 1932, and the National Industry Recovery Act.'* 

It will be observed that this Section authorizes Governmental 
Agencies of this State to avail themselves of the Acts of Congress 
therein mentioned and to contract for loans for construction of 
public buildings, and we have no hesitancy in saying that in our 
opinion The Western State College is such a Governmental Agency 
and is entitled under the provisions of the above quoted act to 
negotiate for such a loan. 

Assuming that the Board of Trustees has the right under the 
law, which we feel it has, to construct a proper residence for the 
President of the School, we are clearly of the opinion that your 
Board of Trustees would be authorized to contract for a loan from 
the Federal Government for the financing and the equipment of 
the proposed residence, such loan to be repaid solely out of the 
rent to be paid by the occupant of the building. 

While your Institution Avould not be permitted to incur in- 
debtedness or to pledge the credit of the State under our Consti- 
tutional limitations, our State Supreme Court has held that reve- 

154 Biennial Report 

nue bonds payable solely from the net income of a public utility 
do not constitute an inde])todness within the meaning and intent 
of our Constitutional and statutory provisions, limiting? the powers 
of municipal corporations to contract indebtedness. (Shields, et al. 
V. The City of Laveland, 74 Colo, page 27). 

The doctrine in the Loveland case was somewhat curbed in 
the recent case of our State Supreme Court in Reimer, et al. v. 
Town of Iloiyoke, same being Docket No. 13004, Supreme Court 
of Colorado, (27 Pac. 2nd, 1082) which holds that a municipality 
may not use funds which have been placed in a general fund 
even though such funds come from the operation of a Public 
Utility, if such funds have to be replaced with money raised by 
taxation, but we do not feel that this case would hamper the con- 
templated arrangement on the part of your Board in contracting 
for this loan. 

It is, of course, distinctly understood that your Board of 
Trustees would not be authorized to pledge the general income 
of your Institution or the faith or credit of the State itself to the 
repayment of such loan or interest. This opinion is predicated 
upon the assumption that the proposed building would be a self- 
liquidation project. 

Respectfully yours, 


Attorney General. 



To Director of Markets, Feb. 14, 1934. 

Interpretation of cooperative marketing Act as applied to 
Dairymen *s Cooperative, Inc. 

To Chas. M. Armstrong, Feb. 15, 1034. . 
Denver Nudist Society. 

The Secretary of State is not oltliiratcd to accept for filing the 
certificate of incorporation of a (•()m])any the propriety of the ob- 
jects of which might be questioned by the courts. (Nudist Cult). 

Clay B. Apple, Feb. L5, 1934. 

Order of payment. 

In c;.sc of a deficiency of revenues to pay all first and second 
class appropriations, tl'c rule is that second class ap|)ro|iriations 
would have to be paid in order of priority of passaire of the stat- 

Attorney General of Colorado 155 

utes making same ; and second class appropriations made at a spe- 
cial session of the legislature would have to follow all first class 
and all second class appropriations made at the regular session. 


To F. D. Willoughby, Feb. 15, 1934. 
City election — Aspen. 

1. Notice of publicjation — The publisher may charge any 
amount not to exceed that set out in kScc. 8, Ch. 139, S. L. 1923. 

2. The city council cannot, by resolution or otherwise, change 
the method of election. 

3. The statutes settling up the machinery for elections are 
mandatory, but under the present economic conditions, by mutual 
consent in a number of towns and cities in this State municipal elec- 
tions are not being held. 


To Clem W. Collins, Feb. 18, 1934. 

Registration of. 

The county treasurer may register school fund warrants when 
there are no funds available to pay the same, when the warrant is 
presented for payment. 


To Governor Ed C. Johnson, Feb. 20, 1934. 

Report and opinion concerning deductions and good time allow- 
ances to prisoners in Penitentiary and present method of computing 
same. (25 pages). 


To H. F. Bedford, Feb. 21, 1934. 

Deposits of foreign Building and Loan companies. 

Where a foreign Building and Loan Association has with- 
drawn from the State, securities deposited with the Secretary of 
State should be retained by him until the association obtains a 
court order to release same, after proof that no further liability 
exists in Colorado. 


To E. A. Chubb, Feb. 28, 1934. 
Interest on County deposits. 

An advisory letter discussing the question and citing cases 

156 Biennial Report 


To Gov. Johnson, Feb. 28, 1934. 
Suspension or removal. 

Members of the State Board of Barbers' Examiners are not sub- 
ject to suspension or removal without charge being filed for mal- 
feasance, misfeasance or nonfeasance in office. Members must be 
given opportunity for defense; otherwise Governor mav not sus- 
pend or remove (S. L. 1909, p. 294; S. L. 1929, p. 202; S. L. 1933, 
ch. 177, Const. Art. XII, Sec. 3 ; 66 Colo. 367; 10 Colo. App. 175). 


To K. C. Barkhausen. March 1, 1934. 

Expense of surgical operation. 

Funds may be spent for operation to prevent total blindness 
or to save the sight of a beneficiary, by Commission for the Blind. 


To Gov. Johnson, March 2, 1934. 

Administrative expenses. 

Reasonable administrative expenses incidental to the distribu- 
tion of the funds for relief purposes mav be properly incurred. 
(House Bill No. 56, 2d. Ex. Sess.) 


To J. R. McClelland, March 2, 1934. 

When an association is on a restricted withdrawal basis, it is 
.showing preference fo allow members to turn in shares in full or 
part payment for any real estate or assets owned by the association. 

Citing Carlson vs. Bogle, 14 Wash. 242. 


To Colorado Tax Commission, March 3, 1934. 

Propertv of municipallv owned Public Utilitv is tax exempt. 
(Rep. Attv. Gen., 19:U-32. No. 2S4; C^onst. Art. X, S^e. 4; 79 Colo. 
216; 80 Colo. 18; 87 Colo. 556). 

To Gov. .lohnson, March 5, 1934. 

Public funds may not bo used to supplement the Coal Mine 
Inspection Fund. 

Attorney General of Colorado 157 


To Dr. Norlin, March 5, 1934. 

For students. 

Relief funds may not be used for the purchase of materials to 
be used by students at the State University in the performance of 
work in connection with Federal relief activities. 

260 TAX LIST— Errors in 

To H. C. Ohlman, March 5, 1934. 

Correction of. 

Under Sees. 7317-7318, C. L. 1921, an obviously clerical error 
in the tax list and warrant may be corrected even though the same 
has been certified and delivered to the county treasurer. 


Thos. C. Turner, March 8, 1934. 
Payment of annual flat tax. 

1. Annual franchise tax, or flat tax, is levied for the privilege 
of continuing to be a corporation (61 Colo. 630 ; Eeport of Attorney 
General, 1919-20, Opinions 239 and 333) and should be paid until 
corporation is dissolved. 

2. Appointment of a receiver does not thereby dissolve a cor- 
poration (10 Colo. 464, 475; 11 Colo. App. 494, 502; 40 Colo. 212, 
226) hence a receivership does not preclude the imposition of a 
franchise tax. 

3. Provisions of Building & Loan Code 1933, governing pay- 
ment of fees, applies only to those associations granted a certificate 
of authority and subject to supervision and examination by the 
State Building & Loan Department. 

4. An association in receivership should pay fees to the Secre- 
tary of State until dissolution is effected. 

To Perry E. Williams, March 9, 1934. 
Investment in city warrants. 

The investment of the Firemen's Pension Fund rests in the 
discretion of the Board of Trustees. (Sec. 9374, C. L. 1921.) 

Any shortage resulting from such investment might form the 
basis of liability on the bond of the Treasurer, who is the custodian 
of all such funds. (Sec. 9349, C. L. 1921; 56 C. J. 1279). 

158 Biennial Report 

To A. n. Horton, March 12, 1934. 

1. A tax certificate purchased by the county may be assigned 
only upon the payment of the taxes assessed on the land subsequent 
to the date of sale or the payment of the sum the county conunis- 
sioners a^ree to take in lieu of such taxes. 

2. The owner may redeem a tax certificate held by the county 
\rithout paying subseouent taxes, but may not pay subsequent 
taxes without first redeeming, and under Sec. 7430, C. L. 1921, if 
the certificate is held by an imlividuaJ, the owner, before redeem- 
ing, must pay all subsecjuent taxes which have been paid by the 
certificate holder and endorsed on the certificate. 

To Executive Council, March 14, 1934. 
Annual Report. 

rndcr Sec. 3475, C. L. 1921, the presentation to the Governor 
of an annual report by the Coal Mine Inspector is mandatory ; the 
publication thereof is authorized, but is not compulsory. If such 
report is published, it must be paid for out of the Coal Mine In- 
spection Fund. 


To Orville Swain, :\[aivh 14, 1934. 
Publication of list. 

Old Age Pension warrants should not be included in publica- 
tion of county commissioners' proceedings. (Sec. 8698, C. L. 1921). 

To J. A. Thompson, March 14, 1934. 
Residence in State. 

Under the Old .Vge Pension Act continuous residence in the 
State for 15 years and in the city or county for 5 years, shall not 
be deemed to have b(»en interrupted by occasional periods of absence 
if the total of such periods (Um's not exceed 3 years. This may also 
be applied to those who are now receiving the pension. The law 
docs not require that he live in Coloradn ..nniimiou^^ly. so Icuie as he 
does not change his legal residence. 

To .James K. McClelland, March 16, 1934. 

I'nder Ch. 47, S. L. 1933, no building and loan association can 
hereafter issue contracts that in any way curtail the right of with- 
drawn! Drovidi'd ill said Statute. (SI Fed. 776). 

Attorney General of Colorado 159 


To Joseph Sanford, March 17, 1934. 
Rights after pardon. 

1. A prisoner released from the penitentiary is entitled to vote. 

2. He has the ri^ht to hold office. 

3. He has the right to enter into contracts and to own prop- 

4. He is eligible for employment on state and city public 

(Art. Vn, Sees. 6 and 10, Colorado Const., Sec. 7557, C. L. 
Colo. 1921.) 


Mr. C. B. Ickes, March 19, 1934. 

County Treasurer of Ijarimer County, 
Fort Collins, Colorado. 

Dear Sir : 

In your letter of recent date, j^ou refer to opinions rendered 
by this office June 20, 1933, and January 4, 1934, and question, in 
some particulars, the position taken by this office. 

For the reasons stated in said opinions, and because of the 
practical issues involved, we believe the courts would rule as follows : 

1. The county, after bidding in property at a tax sale, may 
assign the tax sale certificate at a discount, under Section 7422, C. 
L. 1921, to a stranger. 

2. The county may not sell this certificate at a discount to the 
owner of the propertj*. This would amount mereh^ to an incom- 
plete redemption, and would in effect be granting partial tax ex- 
emption to a select group of taxpayers. 61 C. eT. 1199. 

3. It follows that the county may not sell the certificate at a 
discount to an agent of the owner, for a person may not do indi- 
rectly what he may not do directly. The same rule would apply to 
any collusive arrangement through which the owner by indirection 
buys the certificate at a discount. Barlow v. Hitzler, 40 Colo. 109, 
118 ; 61 C. J. 1205. 

4. Under the rule of the case of Ireland v. Coal Co., 87 Colo. 
193, if the original sale was void for any irregularity or otherwise, 
the lien of the county for the balance of the taxes remains undis- 
turbed, so the result would be the same as above. 

5. If, on the otlier hand, there is a valid tax sale to the 
county, and the county assigns the certificate to a stranger who 
holds it until a tax deed is issued to him, he probably has a new 
title which he can dispose of as he wishes, even to the original 
owner, who would probably take as clear a title as his grantor had. 

160 Biennial Report 

6. If the county assigns, at a discount, a tax certificate to a 
stransrer and thereafter the owner of the land without any prior 
collusion with the purchaser of the certificate buys the certificate 
from such purchaser, taking advantage of the discount, the law is 
not clear. 

The cases of Newmyer v. Tax Service Corp., 87 Colo. 474; 
Buchanan v. Grisivold, 37 Colo. 18, and Mathewson v. Havel, 82 
Kans. 134. are not directly in point, but the language of the courts 
therein .suggests that Ihe county's lien for taxes may not be extin- 
guished in this way, as against the owner (as of the time the taxes 
become a lien) who remains under a continuing obligation to pay 
his taxes. But there is language in Ireland v. Coal Co., 87 Colo. 
193, which seems to point the other way. The question, in both its 
legal and practical aspects, is very complicated, and it can only be 
settled by a decision of the Supreme Court. Until that time we 
must take the po.sition that the obligation to pay taxes is a continu- 
ing one between the citizen and the state and may be extinguished 
only as specifically provided by law. 

7. As a general proposition the county may sell a tax cer- 
tificate at a discount to the mortgagee of the property in question. 
The rule concerning direct purchase at a tax sale is stated in 61 
C. J. at page 1204 as follows : 

*'* * * it has been held that the mere relation of 
mortgagee will not prevent the person so related from ac- 
quiring title to the mortgaged premises by purchasing at 
a tax .sale, and that a mortgagee could become a purchaser 
where he was under no duty or obligation to pay the taxes, 
if he does not use his position a.s mortgagee to become pur- 
chaser, did not purchase in his character as mortgagee, and 
took no part in connection with the sale except to bid and 
pay tho purchase money, and paid it not qua taxes, but qua money ; or if he was not in possession of the prop- 
erty at the time the taxes accrued, or when it was sold 
under the tax proceedings; but where the mortgagee is al- 
lowed to purchase the mortgaged premises at a tax .sale, he 
cannot thereafter set up the title thus obtained against the 
mortgagor's right to redeem." 

We believe the above rules would apply with added force to an 
assignment of a tax sale certificate by the county. 

Very truly yours, 


Attorney General. 


Assistant Attorney (leneral. 

Attorney General of Colorado 161 


To Nick Fuson, March 20, 1934. 
Deputy County officers. 

1. Deputies and assistants may be employed by county officers 
and their compensation for services fixed by the official hiring them, 
with the approval of the board of county commissioners. (!3ec. 
7940, C. L. 1921.) 

2. The salary of a deputy, when once fixed and approved, 
may not be changed during his term by action of the board of 
county commissioners alone. (72 Colo. 200; 80 Colo. 14.) 

3. It is generally provided that salaries of deputies in fourth 
class counties are to be paid from the general county fund. (See 
Sec. 7942 as to deputy sheriffs.) 

Referring to Sec. 5978, C. L. '21 which makes the district at- 
torney the adviser of county officers. 


To Governor Johnson, Mar. 24, 1934. 
Re: Legality of experiments upon. 

The official consent of the Governor to the volunteering of 
prisoners to subject themselves to tests for treatment of tubercu- 
losis, is a matter of policy and cannot subject the State or its 
officers to liability for damages in case of failure of or injury 
incurred by reason of such tests. (Sec. 792, C. L. '21; 6643, C. 
L. '21.) 


To H. F. Bedford, Mar. 28, 1934. 

Ch. 16, 2nd Ex. S. L. '34. Appropriations to Relief Committee in lump 

The appropriation made by H. B. No. 56, passed at the 2nd 
Ex. Session of the 29th Gen. Assembly, for the use of the Official 
Colorado State Relief Committee, in furnishing unemployment re- 
lief, may be withdrawn by the Committee for allocation and dis- 
tribution in gross or lump sums and without submission to the 
Auditor or Treasurer of itemized vouchers. (Sees. 68, 335, C. L. 
'21; 2d Ex. S. L. '33, 16; 2d Ex. S. L., Ch. 15; S. L. '33, Ch. 
51; 69 Colo. 79; 8 Colo. 533.) 


To Judge Dillon, Mar. 29, 1934. 

Taxes not paid by check unless check clears. Compromise of taxes. 

Negligence of County Treasurer in failing to present check 
given him for taxes within proper time is not chargeable to County. 
Mav compromise unliquidated claim, for taxes. (Const. Art. V, 
Sec. 38; Sees. 7335, 7387, 7447, 7460, C. L. '21; 61 C. J. 965, 973.) 

162 Biennial. Report 


To Neil W. Brown, Mar. 29, 1934. 

Duty to serve papers in pauper's suit. 

Sheriff of foreign county must serve papers free of charge in 
suit by poor person. (Sec. 6592, C. L. '21; 16 Colo. App. 200.^ 


To B. F. Stapleton, March 29, 1934. 
Re: Purchase of beef for relief. 

1. The provisions of the bill are not mandatory ; 

2. The necessit}^ for the purcha^^e of such beef must first be 
determined by the Official State Relief Committee before the money 
appropriated therefor could be made available; 

3. Until that necessity is determined there is no occasion for 
the State Auditor to set up a fund under said H. B. 26. (6 C. J. 
865; 12 N. y. S. 890; 28 Colo. 194.) 

To Executive Council, Mar. 1934. 

District Judges. 

District judges in Colorado while serving outside of their 
home counties must be limited to reimbursement for expenses 
actually and necessarily incurred, in no event to exceed $5.00 per 

March 29, 1934. 
Executive Council, 
Room 15, State Capitol, 
Denver, Colorado. 
Re: District Judges' Expense Accounts. 

Gentlemen : 

You have asked our office for an opinion as to the meaning 
of Chapter 101, Session Laws 1921, page 263, particularly as to 
"personal maintenance expenses to the amount of $5.00 per day" 
in Section 1 thereof. 

In response we wish to say that p.irt of the language in Sec- 
tion 2 of said act would seem to indicate that no it»»mi7/»d account 
need be piven of the actual amount spont for maintenance the 
lanpuaj]fe being "with warrant for maintenance expenses as hereby 
specified," i.e., the specification beinjr tlic $5.00 per day in section 

Such an intcr|)retati()n w(uild however in cur opinion be un- 
C0n8titUti<>ii:il if ;is .'i iiiatliM' nf fact tlir jiiilu'e's maiiil cn.-mer u a.s 

Attorney General of Colorado 163 

less than $5.00 a day and he sought to collect the full $5.00. Sec- 
tion 30 of Article V of our Constitution provides, inter alia, that 
^'The judges of the District Courts shall each receive an annual 
salary of four thousand dollars." 

Section 30, Article V, of our Constitution, was amended by 
the people in 1928, to read as follows : 

"The salaries of the governor, the governor's secre- 
tary and the judges of the supreme and district courts of 
the state shall be fixed by legislative enactment ; provid- 
ing that the salaries of said officers heretofore fixed by 
the constitution shall continue in force until otherwise 
provided by the legislative enactment. 

''No law shall extend the term of any public officer, 
or increase or decrease his salary, after his election or 
appointment, as fixed by legislative enactment." 

Section 18, of Article VI, of the Constitution, reads as follows: 

"The judges of the supreme and district court shall 
each receive such salary as may be provided by law; and 
no such judge shall receive any other compensation, per- 
quisite or emolument for, or on account of, his office, in 
any form whatever, nor act as attornev or counsellor at 

Under the section just quoted it is evident that the judge is 
entitled to reimhursement oifily and not to the flat $5.00 for daily 
maintenance. Any excess over the actual expense would undoubt- 
edly be "per diem compensation" which has been held to be 
salary (Buxton v. Rutherford County Commissioners, 82 N. C. 
91-95), and hence unconstitutional. 

We, therefore, conclude that even as to maintenance the Dis- 
trict Judges in Colorado while serving outside of their home coun- 
ties must be limited to reimbursement for expenses actually and 
necessarily incurred, and in no event to exceed $5.00 per day. 

In line with the above opinion, we feel that the State Execu- 
tive Council (formerly the State Auditing Board) was entirely 
within its rights in issuing its letter of March 18, 1933, a copy 
of which was sent to all District Jiidges, and which we feel should 
be followed in the submission of their accounts. 

Yours very truly, 


Attorney General. 


104 Biennial Report 


To Chas. M. Armstrong, March 30, 1934. 

Renewal by a foreign corporation of its right to do business in State. 

A foreign corporation whose term of existence in Colorado has 
expired under the 20 year limitation prescribed by Sec. 2328. C. L. 
1921, must file a certificate of renewal and pay the same fees as 
a domestic company, notwithstanding S. L. '31, Ch. 70, which 
authorizes the incorporation of Colorado corporations with a per- 
petual existence. 

March 30, 1934. 
Honorable Charles M. Armstrong, 
Secretary of State, 
State Capitol, 
Denver, Colorado. 

Attention Mr. Merrill Slater, Chief Filing Clerk : 
Dear Sir: 

You have submitted to me some correspondence between your 
office and Messcrs. Albert H. and Henry Veeder, of Chicago, gen- 
eral counsel for Swift and Companj^ an Illinois corporation, which 
qualified to do business in Colorado on April 19, 1913. 

You have notified Swift and Company that if it desires to 
continue its corporate existence in this State, it will be required 
to file in your office a certificate of renewal on or before April 
19th of this year. 

At the time Swift and Company was atlmitted to do business 
in Colorado the life of domestic corporations was limited to 
twenty years. (C. L. Colo. 1921, Sec. 2243.) The period for 
which foreign corporations could ({ualify to do business here was 
likewise limited to twenty years and they were required to file 
renewal certificates at the end of that period. (C. L. Colo. 192], 
Sec. 2328.) At the same time, C. L. Sees. 2291 and 2292 provided 
the method of extending and continuing the term of incorporation 
of an}' domestic corj)orati{)n "the same as if originally incorpo- 
rated," i.e., for a term not exiMM'ding twenty j'cars. This method 
called for a special stockholders' meeting. 

In 1931 said Sec. 2243 was amended so as to permit the organ- 
iz;iti<m of Colorado corporations with limited or perpetual existence 
rS. L. 1931. Chap. 70, Sec. 4>. The l'»31 Act, See. 17. also 
amended said Sec. 2292 by providing that any domestic corpora- 
tion might renew its corporate life by vote of stcK'kholders at a 
special meeting, in perpetuity or for such term as the stockholders 
determined upon. 

Counsel for Swift and Company insist tliat the Act of 1931, 
above refi'rred to. antomat ir-ally •'Xtcmhul the Comjiany's right 
to do business in ('oh)rado for the term of its corporate existence, 

Attorney General of Colorado 165 

to-wit, nntil the year 1984, by permitting the organization of 
domestic corporations with perpetual existence ; and in support 
of this contention they refer to American Smelting & Ref. Co. v. 
Lindsley, 204 U. S. 103, and Iron Silver M. Co. v. Cowie, 31 Colo 
450, 72'^Pac. 1067. The Smelting Company case held that after 
the admission of a foreign corporation, the State could not increase 
its liabilities without, at the same time and to the same extent, 
increasing those of domestic corporations Tpage 113). After the 
admission of the Smelting Compan}^ the State attempted to im- 
pose upon it a tax in double the amount of the tax on domestic 
corporations. This was held to be discriminatory and an impair- 
ing of the State's contract with the Smelting Company, made at 
the time of the Company's admission. 

I can not see that the 1931 Act discriminates against foreign 
corporations. They may renew their right to do business in the 
State, perpetually or for the term for which they are organized, 
simply by filing a renewal certificate and paying the same fees 
as a domestic corporation. (C. L. Sec. 2328.) No stockholders' 
meeting is necessary in order to authorize this renewal certificate. 
Domestic corporations desiring to renew their corporate life must 
hold a special stockholders' meeting, file a renewal certificate and 
pay *'the same fees as are provided by law for filing a new cer- 
tificate of incorporation." (Act of 1931, Sec. 17, amending C. L. 
Sec. 2292.) To adopt the theory of counsel would, it seems to 
me, give to foreign corporations ''greater powers" than are ac- 
corded to domestic corporations, and would not make foreign cor- 
portions subject ''to all the liabilities, restrictions and duties" im- 
posed upon domestic corporations, — which is contrary to the prin- 
ciple laid down in the Iron Silver case. The Iron Silver case 
arose before the enactment of C. L. Sec. 2328, and was based on 
C. L. Sec. 2322. 

In their letter of February 5th last, counsel for Swift and 
Company question the constitutionality of Sec. 2328, requiring 
the filing of renewal certificates by foreign corporations, on the 
gi-ound that Swift and Company is engaged in intersjtate com- 
merce. The reply to this argument is that Swift and Company 
is aho engaged in business in Colorado, and the fees exacted by 
said Sec. 2328 in no way constitute a burden upon or an inter- 
ference with interstate commerce, within the oft-adjudicated mean- 
ing of U. S. Constitution, Art. I, Sec. 8, clause 3, but are simply 
a charge for the renewal of the privilege of doing business in Colo- 
rado. In Western Union Tel. Co. v. Kansas, 216 U. S. 1, cited 
by counsel, the State undertook to tax the entire capital stock of 
the Telegraph Company. Other cases cited by counsel on this point 
are of the same general character as the Western Union case. 

I am therefore of the opinion that in order that Swift and 
Company may legally continue to do business in this State after 

166 Biennial Report 

April 19. next, it must file in your office the renewal certificate 
and pay the fees prescribed for domestic corporations Tinder like 

Yours very truly, 


Attorney General. 
Assistant Attorney General. 


To Grant McFerson, March 29, 1934. 
Pledge of securities for public deposits. 

State banks have authority to pledj^e their assets for the secur- 
ity of county deposits only as prescribed in Ch. 9, of the Laws of 
the 2nd Ex. Session of the 29th Gen. Assembly, which act enumer- 
ates the items of assets that may be so pledged. Such banks may 
pledge as security for such deposits only Farm Loan bonds, as pro- 
vided in Ch. 92, S. L. 1925. 

March 29, 1934. 
Honorable Grant McFerson, 
State Bank Commissioner, 
State Office Building, 
Denver, Colorado. 
Dear Mr. McFerson : 

In your letter of the 16th inst., you request the opinion of 
this department concerning the right of banks organized under 
the laws of this State to pledge their assets as security for public 

The Banking Act of 1913, as you are aware, contains no pro- 
vision concerning this matter. However, in the case of }fcFerson 
V. Nation^d Surety Co., et al., 72 Colo. 482, the Court held that 
a State bank had the right to pledge its assets to secure a deposit 
of county funds and the language and reasoning of the opinion 
is broad enough to cover public deposits in general. This decision 
was handed down in December, 1923. Section 7 of Chapter 65, 
Session Laws of 1927, to which your letter refers, provides: 

*'No bank shall pledge or hypothecate any of its secur- 
ities except a.s collateral for direct bills payable and (or) 
for the protection of public funds, or moneys in said 
bank, in accordance with statutes now or hereafter en- 

Section 6 of the same Act expressly recoprnizes the riprht of 
State banks to pledge their assets as security for direct bills pay- 
able, but inasniueh as the section above (juoted provides, in effect, 

Attorney General of Colorado 167 

that State banks shall not pledge their assets as security for public 
funds or moneys except in accordance with statutes then or there- 
after enacted, it becomes necsesarj^ to consider what legislation 
had been theretofore or has been thereafter enacted covering the 
subject of pledges of assets of State banks to secure deposits of 
public funds or moneys. 

Section 1 of Chapter 9, Second Extraordinary Session Laws 
of 1933-1934, amends Section 8796, Compiled Laws of 1921, so 
as to provide that county treasurers may accept from banks (obvi- 
ously including State banks) as security for deposits of public 
funds in his custody as county treasurer, 

** bonds or other interest bearing securities of the United 
States, of the State of Colorado, of Counties, Cities, Towns 
or School Districts situated within said State, farm loan 
bonds issued by any Federal Land Bank or Joint Stock 
Land Bank organized under an Act of Congress approved 
July 17, 1916, * * * known as 'Federal Farm Loan Act' 
and Acts amendatory thereto/' 

While this Act deals with the subject of pledges of assets of 
banks from the standpoint of the power and duty of the county 
treasurer, rather than from the standpoint of the power of the 
bank to make such pledges, yet we think that the clear result and 
effect of the Act is to empower State banks to pledge as security 
for deposits of county funds, assets of the character specifically 
enumerated in the Act as above set forth. In other words, this 
Act does not authorize State banks to pledge their assets generally 
even for the security of county deposits, but only authorizes the 
pledging of the specific assets described in the Act. 

Section 1 of Chapter 92, Session Laws of 1925, provides that 
**Farm Loan Bonds issued by any Federal Land Bank or Joint 
Stock Land Bank organized pursuant to an Act of Congress ap- 
proved July 17, 1916, * * * shall be accepted as security for all 
public deposits." 

In a letter addressed to you by this office under date of Octo- 
ber 18, 1932, the opinion was expressed that this Act of 1925 
authorized State banks to pledge farm loan bonds issued for all 
public deposits. While this Act of 1925 is not entirely clear, it 
is susceptible of the construction so heretofore placed upon it 
by this office, and we do not feel that we should disturb the above 

Chapter 13, First Extraordinary Session Laws of the 29th 
General Assembly, entitled "An Act Concerning Legal Invest- 
ments," provides, in Section 1 thereof, that it shall be lawful for 
banks to invest their funds in ''bonds of the Home Owners' Loan 
Corporation and in the bonds of any other corporation which is 

168 Biennial Report 

or may be created by the United States as a govermnental agency 
or instrumentality." Section 2 of the Act provides that: 

"The bonds herein made eligible for investment may 
be UJ.ed as security for any depository bond or obligation, 
wherein any kind of bonds or other securities arc required 
or may hy law he deposited as security." (Italics ours.) 

While this Act is somewhat similar in its terms to the Act of 
1925, concerning Farm Loan Bonds, as above quoted, it does not, 
in our opinion, authorize State banks to pledge Home Owners' 
Loan Bonds as security for deposits of public funds. 

We also direct attention to Chapter 15, of the laws of the 
First Extraordinary Session of the 29th General Assembly, which 
Act is entitled: 


And Section 1 of which provides that interest at the rate of not 
less than one per cent, per annum shall be paid upon all public 
deposits, and further that: 

•'Where a depository bond or bonds or the deposits 
in escrow of approved securities to secure any such de- 
posits shall be required of any such bank, trust company 
or other financial institution so accepting such deposits, 
the said public officials who by virtue of their office have 
the aforementioned public funds in their custody or pos- 
session or under their control, are hereby authorized to 
pay all necessary premiums upon such depository bonds 
and all necessary escrow fees or charges in connection with 
the (!eiK>sit of such approved securities out of any interest 
so received or credited." 

We do not consider, however, that this Act is intended to, in 
any manner, enlarge Ihe authority' of State banks to j^ledge their 
a.ssets as security for public deposit? or to affect or enlarge, in 
any manner, pre-existing authority of any public officer, to accept 
assets of said bank as security for jniblic deposits. In other words, 
this statute is merely intended to require the j)ayment of interest 
upon puhlif (h'posits and to authorize public oflicers to pay pre- 
miums upon dej)ositorv bonds and escrow charges out of the in- 
terest so collected. 

Our conclusion therefore is, that State banks may lawfully 
ph'd'je for tlie protection of county deposits the securities ex- 
pressly enumerated in Chapter 9, Second E.xtraordinary Session 

Attorney General of Colorado 169 

of the 29th General Assembly, as above quoted, but that State 
banks have no authority to pledge their assets, with the exception 
of farm loan bonds, for the security of any other public funds 
than deposits made b}^ county treasurers. 

Although the question of the authority of National banks lo- 
cated in this State to pledge their assets to secure deposits of 
public funds is a matter with which you have no direct official 
concern, yet we direct attention to the fact that the National Bank- 
ing Act, as amended June 25, 1930, provides as follows : 

•'Any association may, upon the deposit with it of 
public money of a State or any political subdivision 
thereof, give security for the safekeeping and prompt pay- 
ment of the money so deposited, of the same kind as is 
authorized by the law of the State in which such associa- 
tion is located in the case of other banking institutions in 
the State." 

And in construing that Act, the Supreme Court of the United 
States in the case of City of Marion v. Snecden^ decided February 
f), 1934, held that National banks are authorized to pledge their 
assets for the security of public deposits only to the extent, if any, 
permitted to State banks under the laws of the State wherein the 
National bank is located. 

Very truly yours, 


Attorney General. 


First Assistant Attorney General. 

(See Supplementary opinion attached in re funds of First- 
class School District.) 

November 22, 1934. 
Hon. Grant McFerson, 
State Bank Commissioner, 
State Office Building, 
Denver, Colorado. 

Dear Mr. McFerson : 

Under date of March 29, 1934, this department addressed to 
you a letter covering the general subject of the right of state banks 
to pledge their assets as security for public deposits. In writing 
that letter, we overlooked the provisions of Chapter 159, Session 
Laws of 1933, which refers to first class school districts having 
a population of more Ihan 30,000. That statute provides, in sub- 
stance and in effect, that state banks may pledge bonds of the 
United States, of the State of Colorado, general obligation bonds 
of cities within this State having a population of more than 25,000, 

170 Biennial Report 

or bonds of the school district itself as security for funds deposited 
by the treasurer of the school district; and accordinprly our opinion 
of March 29, 1934, is modified as hereinabove indicated 

Very truly yours, 


Attorney General. 
First Assistant Attorney General. 


To John T. Walsh, March 31, 1934. 

Fees and charg^es, 4th class counties. 

March 31, 1934. 
Honorable John T. Walsh, 
County Judge, 
Alamosa, Colorado. 
Dear Sir: 

Tn your letter to this office of March 5, 1934, you ask several 
fjuestions pertaining to fees chargeable by County Courts in coun- 
ties of the fourth class. 

We make answer to your questions in order set forth in the 
said letter. 

(1) **In probate cases in counties of the fourth class 
do we charge for certified copies of papers in the file or 
does the docket fee paid upon filing the case take care 
of this while the estate is still active?" 

Charges can properly be made bv virtue of and in accordance 
with Chapter 80, Sec. 2, pages 299-300, S. L. 1929. 

(2) *'In the case of claims presented acrain^t the es- 
tate on regular form Number 14 revised, is it the duty of 
the clerk of the court to take the acknowledgment on these 
claims without remuneration • • •?" 

We answer this query in the affirmative. Chapter 79, Section 
1, page 291, S. L. 1031, which reads "For services rendered by 
judges and clerks of county courts in probate proceedings, the 
following fees and no other sliall he charged • • •." Certain fees 
are thereafter j)rovidrd for but no ])rovision is made for remunera- 
tion to the clerk for taking acknowledgments in the course of 
the probate proceedings, hence he is given no right to charge for 

(3) In our opinion, a County Judge is entitled to a fee of 
$1.00 for approving the bond of an offic r of an irrigation dis 
trict. Section TSSG. ('. Ij. 1!)'J1. authorizes this charge. 

Attorney General of Colorado 171 

(4) All jurors who are summoned and appear are entitle(^ 
to jury fees in accordance with Chapter 119, page 425, S. L. 1929. 
An earlier opinion of this office (Biennial Report 1929-1930, 
Opinion 81), we believe correctly states the rule to be that the 
above statute means actual court attendance and it is immaterial 
whether the juror be sworn to ivy a case or nof. However, if the 
juror be excused for a definite period, he is not entitled to com- 
pensation during this said period. 

We trust that the above satisfactorily answers the questions 

Very truly yours, 


Attorney General. 
Assistant Attorney General. 


To Charles D. Vail, April 6, 1934. 

Liability for damages by reason of construction in Loveland. 

The State Highway Department is not liable for damages to 
property owners occasioned by the construction of a wall built in 
connection with an approach to a viaduct. The viaduct and ap- 
proach were constructed with Federal funds under the supervision 
of the Highway Department. The Federal Government does not 
pay for rights of way or damages to abutting property in cases 
of this kind. 


To James R. McClelland, April 6, 1934. 

a. An active B. & L. Association cannot sell or assign notes 
or mortgages executed by its borrowing members without the con- 
sent of the aifected members. 

b. The Building and Loan Commissioner is granted the right, 
under Ch. 47, Art. 8, Sec. 15 of the B. & L. Code, 1933, to sell 
and assign notes and mortgages while liauidating an association. 
(Citing Allen v. Lamar, 128 So. 254.) 


To S. A. Koenig, April 7, 1934. 
Payment of taxes. 

When a bank becomes insolvent the assets of the bank are 
held by the Receiver for creditors of the bank and cannot be paid 
out for taxes on the capital stock whether the tax accrued before 
or after insolvency. (91 Fed. 93; 167 U. S. 461.) 

Citing Opinion No. 136, A. G. Rept. 1927-1928. 

172 Biennial Report 


To Judge Dillon, April 9, 1934. 

A receipt from the proper officer is prima facie evidence of 
payment of taxes^ but it is not conclusive, and does not estop the 
county from showing that the tax was not in fact paid or ''paid in 
full.'* (61 C. J. 969.) 

To C. D. Sawver, April 10, 1934. 
Premiums on Compensation Insurance. 

The cost of compensation insurance on employes, under the 
new relief plan, is an administrative expense and may properly 
be paid out of funds provided for by Ch. 16, 2nd Ex. S. L. 1934. 

See also opinion to Governor Johnson of March 2, 1934 — ante. 

To Col. W. C. Danks, April 12, 1934. 

Appeal from Administrative Boards. 

Though Ch. 64, 8. L. 1927, provides for no appeal for deci- 
sions of Commission an appeal is possible and act is valid. (79 
Colo. 307.) 


To A. L. Baldwin, April 12, 1934. 

Revocation of certificate. 

Power to revoke certificate of certified public accountant 
granted by Sec. 4728, C. L. 1921, carries with it the power to sus- 
pend. (St. Bd. Dental Examiners v. Savelle, 90 Colo. 177; Klatt 
V. Guaranteed Bond Co., 250 N. \V. 825.) 

To Jackson Cochrane, April 13, 1934. 

AwMtfl of Life InRU ranee Co. 

A life insurance company deposited with the Insurance Com- 
mi.s.sioner a mortgage upon real estate a.s a part of its capital a.sset8 
requirod by law to be so deposited, and thrr«»after took from the 
iiiorttratror a deed to the property. The mortjraire was not ex- 
tin^niish'Ml but rnnainrd an asset of the insurance company for the 
brin'fit of the policyholdors thereof. 

Attorney General of Colorado 173 


To B. F. Stapleton, April 13, 1934. 
Civil Service rights. 

Since the statutes provide for the offices of chief boiler inspec- 
tor and two deputy inspectors, all of whose duties are substantially 
the same and since Ch. 37, Reg. Sess, Laws '33, abolished the 
office of chief boiler inspector, it follows that the chief inspector 
and the deputy inspector, who were eldest in point of permanent 
certification were entitled to hold the two remaining positions. It 
appearing that Mr. Kelly was the youngest in point of service and 
of permanent certification, he was properly released from duty on 
July 1, 1933, when the Administrative Code Bill took effect. 


To H. F. Bedford, April 16, 1934. 
Under Salary Reduction Act. 

Ch. 181, Reg. Sess. Laws '33, known as the Salary Reduction 
Act, applied to the salary of the Deputy State Treasurer for the 
reason that such office was in existence in June, 1932, the salary 
is fixed by statute and the term of office is only during the pleasure 
of the appointing power. (Sec. 308, C. L. '21.) 


To James R. McClelland, April 16, 1934. 
Appropriation of stock by association. 

A member of an active association cannot appropriate stock 
not specificalh^ assigned with the loan he desires to repay, if the 
association has unpaid withdrawals that have preference to such 

Sundheim, 3rd Ed., p. 133 ; 

Conservative Homestead Assn. v. Dreyfuss, 143 So. 356. 


To Lewis & Grant, April 17, 1934. 
Rertewal of corporate existence. 

Renewal of corporate existence cannot be made by amendment 
without paying renewal fee of $25.00. 


To B. F. Stapleton, April 17, 1934. 
Payment of expenses. 

Expenses of district judges must be paid by county calling 
them, when serving outside their own district. 
Construing Sec. 5712, C. L. 1921. 

174 Biennial Report 


To State Board of Land Commissioners, Apr. 17, 1934. 
Bonds of Federal Farm Mortgage Corporation. 

Statv^ of Colorado or any of its departments may invest funds, 
in their custody available for investment, in bonds of the Home 
Owners Loan Corporation, and in the bonds of any other corpora- 
tion which is or may be created by the United States as a govern- 
mental agencv, — even where the rate of interest is less than 4 per 
cent, as provided in Ch. 169, S. L. 1929. (S. L. 1933, Ch. 13.) 


To B. F. Stapleton, April 20, 1934. 
Auditing of claims. 

The Act of 1921 creating the Colorado Board of Corrections, 
supersedes Sees. 297-304, C. L. '21, relating to auditing. Until a 
bill properly approved under the Board of Corrections Act (Sec. 
543, C. L. '21) conies before the State Auditor it does not become 
his function to audit it. (Parry & Jones claim.) 

To James R. McClelland, April 21, 1934. 

Dividends are not the property of a stockholder until they 
have been earned and declared by the Board of directors. He is 
not entitled to share in dividends declared subsequent to his with- 
drawal from the association. 

To H. C. Johns, April 24, 1934. 
Compensation of game wardens. 

Under Sec. 7, Art. 1, Administrative Code Bill, an oflficer shall 
receive no compensation or fees in addition to his salary. Game 
wardens cannot share in fines. 


To Albert E. Corf man, April 30, 1934. 
Surplus funds; budget. 

A sch(K)l board may not iawtully t'Xi)end surplus in special 
fund for payment of bonus to teachers. 

The Board may not alter or revis<* budget in first class dis- 
tricts i\UiT biKJL'ct li;is Imtii votrd upon 

Attorney General of Colorado 175 


To Antonio Vigil, May 1, 1934. 
Paroled convict. 

A paroled convict may vote at school election. 

299 TAXES 

To Hon. Robt. G. Strong, May 1, 1934. 

Re: Old Age Pensioner. 

Taxes on property owned by an applicant for an Old Age 
Pension and conve3^ed to the county for the use of the Old Age 
Pension Fund become uncollectible. (Citing cases.) 


To George Fischer, May 1, 1934. 

** Every tax sale regular in all respects is the beginning of a 
new title, which is paramount to titles originating in former sales." 
Morris v. Brauberger, 59 Colo. 164; 
Henrylyn Dist. v. Patterson, 65 Colo. 385 ; 
Bennett v. Denver, 70 Colo. 77 ; 
Denver v. Bullock, 80 Colo. 9. 


To H. F. Bedford, May 1, 1934. 
Investment of. 

Ch. 13, 1 Ex. S. L. '33, does not authorize the State Treasurer 
to invest surplus funds of the State in securities enumerated in 
said act or otherwise. 


To W. Lucas Woodall, May 3, 1934. 
Re: Ch. 9, 2 Ex. S. L. '34. 

1. The above chapter and act which provide inter alia that 
county treasurers who act in conformity therewith in the matter 
of custody of county funds shall be exempt from personal liabil- 
ity, is probably constitutional. 

2. In the event banks designated by boards of county com- 
missioners for the deposit of county funds refuse to pledge assets 
for the security of such deposits, the county treasurer should 
report the facts to the county board so that the board may au- 
thorize the treasurer to invest such funds in securities designated 
by the above act, or, in the alternative, designate other banks 
within or without the county for the deposit of such funds. 

176 Biennial Report 

May 3, 1934. 
Mr. W. Lucas Woodall, 
County Treasurer of Otero County, 
La Junta, Colorado. 
Dear Sir: 

In your letter of the 19th ult., you refer to Chapter 9 of the 
laws enacted at the Second Extraordinary Session of the 29th 
General Assembly, approved and in effect January 11, 1934, and 
request our opinion upon certain questions relating thereto, which 
we shall discuss in the order propounded. 

You first ask whether or not, in our opinion, this statute is 
constitutional. We beg to advise you that we find no reason to 
question the constitutionality of this Act. The last paragraph of 
Section 1 of this Act reads as follows : 

**No County Treasurer, or member of the Board of 
County Commissioners who acted in good faith in ap- 
proving and designating such depository, shall be liable 
for loss of public funds deposited by such County Treas- 
urer or his deputies by reason of the default or insol- 
vency of such depository ; nor shall any County Treasurer 
who shall invest any such funds as hereinbefore provided, 
or any member of the Board of County Commissioners 
who shall in good faith authorize such investment, be 
liable for any loss on account of such investment." 

We assume that your question as to constitutionality is based 
upon the above provision of the Act. In the case of Gartley v. 
Peaple, 24 Colo. 155, the Court held, in substance, that the lia- 
bility of a County Treasurer for the safekeeping of public funds 
of the county in his official custody is practically absolute, and 
that the County Treasurer would not be absolved from liability 
on his bond in the event he deposited county funds in a reputable 
l)ank which thereafter failed, with resultant loss to the county. 
But in that case the court reached the above conclusion, not upon 
the grounds that the Constitution of the State makes the liability 
of the County Treasurer substantially absolute, but upon the 
j^round that the common law, as a matter of public policy, had 
established this strict rule of liability of public oflicoi*s for the 
safekeeping of publie funds in their custody. In the later case of 
(iiirtlfij V. People, reported in 2H Colo. 227, the Court elcnrly recog- 
nized the fa<'t that the (Jeneral Assembly by appropriate legisla- 
tion eould modify or abrogate the eoiiunon law rule of strict 
aeeountability and substitute therefor a more limited rule of lia- 

In HdbcfH-k V. Uuckij Ford, 23 Colo. A pp. WVl, it was again 
recognized that a city might by ordinanee enaeted under a State 

Attorney General of Colorado 177 

statute relieve a City Treasurer from the common law rule of 
strict accountability for the safe custody of municipal funds. 

The State Constitution itself in Section 12 of Article X 
thereof appears to render the State Treasurer absolutely respon- 
sible for the safekeeping of State funds and while it is probable 
that no State statute could relieve him from strict liability im- 
posed by the Constitution, our Supreme Court, as above shown, 
appears clearly to enunciate the doctrine that the absolute liabil- 
ity of county treasurers is not founded upon any provision in the 
Constitution but exists only as a matter of general law which is 
subject to repeal or modification by statute. 

The paragraph above quoted^ of the Act of 1934 appears to 
have been plainly intended to modify the pre-existing rule of 
strict accountability applicable to county treasurers and, as above 
stated, we see no reason why it was not within the province of 
the Legislature to determine the degree of liability to which 
county treasurers should be subjected with reference to the cus- 
tody of public funds of the county. 

It follows that the County Treasurer and his bondsman 
would, under a literal interpretation of the language of the recent 
Act above quoted, be released from liability for loss of funds on 
account of the failure of a bank if the Act had been scrupulously 
complied with. Permit us to add, however, that, notwithstanding 
the terms of this statute, we believe that both the Board of 
County Commissioners and County Treasurers should act with 
great caution and circumspection in performing their duties rela- 
tive to the safekeeping of the public funds of the county for it is 
entirely possible that the courts would hold that if either the 
County Board or the County Treasurer were guilty of reckless- 
ness or negligence in designating banks for depositing funds 
therein they would be held accountable, regardless of a literal 
compliance with the statute. In other words, the statute was 
never intended as an alibi for official carelessness or negligence, 
but only as a relaxation of the very strict rule theretofore estab- 
lished by the common law and to be available to the county offi- 
cials where they have acted with that degree of prudence, good 
faith and diligence which the importance of their duties demands 
and upon which the public is entitled to depend. 

In your last question you inquire whether or not the County 
Treasurer would incur liability in case he, with the approval of 
the County Board, deposited funds in a bank without having 
taken security therefor. The Act provides, in substance, that be- 
fore making a county deposit the Treasurer may exact a deposi- 
tory bond but that he shall accept certain designated securities 
in lieu thereof if tendered by the bank. The vital question is 

178 Biennial Report 

whether or not the word "may" in this part of the Act should be 
construed as mandatory or as merely optional upon the part of 
the County Treasurer. A preceding provision of the same Act 
provides that the Treasurer shall deposit county funds in banks 
as required by resolution of the County Board. If the word 
"may" really means "shall," it is apparent that a dilemma might 
arise. For exaanple, the County Board might command the Treas- 
urer to deposit the county funds in a certain bank; that bank 
might refuse to put up either a depository bond or such securi- 
ties as are enumerated in the statute. In such event, the County 
Treasurer could not follow both the mandate of the County Com- 
missioners to deposit in the designated bank and the mandate of 
the statute to take a depository bond or securities. In such con- 
tingency, we think the County Treasurer should follow the stcit- 
ute as nearly as possible, and if the County Board has commanded 
him to deposit funds in a designated bank he should do so even 
though the bank refuses to put up the depository bond or 

However, upon this point we must add that, in our opinion, 
it would be the duty of the County Board in designating banks to 
select those, if at all possible, that would put up either depository 
bonds or the statutory securities, and here it will be noted that 
the bank or banks which the commissioners may designate need 
not be located within the county, but need only be located within 
the State. If in a particular instance, the County Board has des- 
ignated a bank as a county depository, and that bank refuses to 
put up a depository bond or securities, our suggestion is that the 
Treasurer report the fact to the County Board so that the Board 
may exercise its right under the statute to direct the Treasurer 
to invest the county funds in Government bonds or other securi- 
ties named in the statute, or designate another bank within or 
without the county which will put up a depository bond or 

AVe repeat that both the County Board and County Treasurer 
should in all contingencies, emergencies and situations that may 
arise, exercise the greatest diligence in safeguarding the integrity 
of the public funds regardless of the above qut)led provision of 
the new statute relieving county treasurers from the strict com- 
mon law liability to which they have heretofore been subjected. 

In closing this opinion, we direct your attention to the fact 
that the District Attorney is the statutory legal adviser of county 
treasurers, and we suggest that this nuitter be also submitted to 
him for consideration so that in any eventuality you will be in a 
position to say that you have <*onsulted not only the office of the 
Attorncy-(f('ncral. but your statutory legal adviser. 

Attorney General of Colorado 179 

Trusting the above will be of service to you, we beg to 

Very truly yours, 

Attorney General. 

First Assistant Attorney General. 


To Robt. L. Sheverbush, May 3, 1934. 
Interest on County deposits. 

Ch. 9, 2 Ex., S. L. '34, provides that county funds shall be 
deposited in banks designated by the Board of County Commis- 
sioners and that such funds shall bear interest at a rate agreed 
upon between the County Board and the Clearing House, which 
rate shall be not less than one per cent per annum. 

This statute placed the duty of determining the interest rate 
upon the County Board rather than upon the County Treasurer, 
and in the event the interest is not paid at the minimum rate or 
otherwise, the County Treasurer would not be liable therefor. 

Whether the bank accepting county deposits but not having 
agreed to pay the minimum rate of interest would, nevertheless, 
be liable therefor, is a matter that must be determined by the 


To Charles D. Vail, May 7, 1934. 

State Treasurer is custodian. 

The State Treasurer is custodian of all public funds whether 
derived from the Federal Government as advances on National 
Highway projects or otherwise and would be subject to the same 
liability therefor as in the case of other public funds in his 


To Association, May 7, 1934. 

Status of employes in departments listed. 

1. Under Subsections 1 and 2, Ch. 157, S. L. 1931, any State 
employe who w^as in the employ of the State on August 1, 1931, 
and who did not become a member of the Retirement Association 
by August 1, 1933, is permanently excluded from membership 
therein. There is no basis for the exemption of any such em- 
ployes, if they are State employes as defined in the law. 

2. If any employe in any of the agencies listed, entered the 

180 Biennial Report 

service of the State since August 1, 1931, unless on a temporary 
basis, then such employe should have automatically become a 
member of the association at the time of entering the service, and 
if any of the agencies listed have added any employes on a per- 
manent basis since August 1, 1931, without making the necessary 
deductions, the Retirement Board should make some reasonable 
rule with respect to deductions from the date of their entering 
the service, in order that their rights may be safeguarded and the 
Retirement Fund properly protected. 


To Edward 0. Russell, May 8, 1934. 

Powers of County Judge with respect to insane. 

Under Ch. 126, S. L. 1933, a county judge may issue an order 
that a person alleged to be insane be taken into custody pending 
an examination into his mental condition and until such determi- 
nation he shall be confined in a hospital or convenient and 
suitable place, to be designated by the court or judge for exam- 
ination, diagnosis, observation and treatment. This does not con- 
template that such alleged insane person should be confined in 
the Colorado State Hospital at Pueblo, but that such person 
should be committed to the Colorado Psychopathic Hospital at 
Denver, under Session Laws 1933, page 524, or some local hospital 
or other convenient place. 


To Mrs. Inez Johnson Lewis, May 9, 1934. 
Compensation of special teachers. 

Teachers employed by the State Teachers College to teach in 
said college and also to supervise student teachers in rural dis- 
tricts during a small portion of each week, cannot legally draw 
minimum salaries from the General School Fund upon certifica- 
tion by local district officials. 


To Chas. A. Lory, May 11, 1934. 

Participation in Federal Retirement Plan. 

Sec. 8145, C'. Ij. '21, and Sec. 8064 et seq., both clearly make 
the Ft. Lewis School and the Extension Division of the State 
Agricultural College parts of the agricultural college system, and 
there is no sufficient distinction between the employes of these 
divisions and the employes of the agricultural college proper to 
justify a discrimination against them with respect to participa- 
tion in said retirement plan. 

Attorney General of Colorado 181 

309 TAX SALES— Redemptions 

To H. A. Lennarts, May 15, 1934. 

A land owner may not redeem a fractional part of his prop- 
erty which has been sold as a whole to the county for delinquent 

If lands have been or should have been assessed separately, 
for any lawful reason, such lands may be redeemed separately, 
even where they have been sold for taxes in one certificate. (Sec. 
7248, C. L. '21.) 


To Clifford Mills, May 16, 1934. 
Use of Permanent Land Fund. 

The Board of Regents may use the Permanent Land Fund of 
the University for current expenses, if necessary, although such 
procedure Avould be imprudent. (14-page opinion.) (Enabling 
Act, Sees. 7, 10, 14; Const., Art. IX, Sees. 2, 3, 5, 10, 12; G. L. 
1877, p. 925; S. L. 1895, Ch. 105, Sec. 8028, C. L. 1921; 18 Colo. 

311 TAX SALES— Redemptions 

To Fred Clark, May 18, 1934. 
Oil and gas lessee. 

Under Sec. 5, Ch. 151, S. L. '29, the holder of an oil and gas 
lease would be a lessee within the meaning of the Act, and after 
the expiration of six months from the date of sale would be en- 
titled to take his place with other incumbrancers who may redeem 
in the priority order of their claims. 

312 BEER 

To S. J. Neeley, May 19, 1934. 
Disposition of city license fees. 

All beer license fees collected by the municipalities, under 
S. L. 1933, Ch. 45, Sec. 17, must be turned over to the county and 
credited to the Old Age Pension Fund. 


To Hon. Cordell Hull, May 21, 1934. 
Exemption of Consular Agents. 

Consular agents or employes are not taxed in Colorado ex- 
cept as to gasoline taxes. 

182 Biennial Report 

To Irene Murchison, May 22, 1934. 
Revocation of license. 

Under Sec. 4648, C. L. 1921, the State Board of Nurse Exam- 
iners may revoke, withhold or refuse to renew a license upon a 
three-fifths vote of its members. Must give notice and hearing. 

To L. E. Birdsall, May 25, 1934. 

In re Federal Deposit Insurance Corp. 

1. The laws of the State of Colorado do not permit State 
banks, trust companies or mutual savings banks to purchase Class 
"A" stock of the Federal Deposit Insurance Corporation, or as- 
sume the o])ligations incident to the ownership of such stock. 

2. The laws of this State do not authorize or permit the 
Federal Deposit Insurance Corporation to be appointed receiver 
of a State bank, trust company or mutual savings bank organized 
or doing business under the laws of this State if the bank should 
l)e closed on account of inability to meet demands of its deposi- 
tors. (Sees. 2705-2743, C. L. '21, as amended by Ch. 65, S. L. '27.) 

3. In the event any added legislation is required in this 
State to secure more effective operation of the insurance provi- 
sions of the Banking Act of 1933, it could be secured only by the 
passage of legislation at the next regular session of our General 

To E. B. Morgan, May 26, 1934. 

Bank Stock Shares. 

Shares of preferred stock issued by State banks and owned 
by the Reconstruction Finance Corporation, are exempt from 
State taxation. 

The same rule applies to shares of preferred stock issued by 
National banks and owned by the Reconstruction Finance Corpo- 
ration. (See supplementary opinion of July 27, 1934.) 

May 26, 1934. 
Mr. E. B. Morgan, Chairman, 
Colorado Tax Commission, 
State OfTice liuilding, 
Denver, Colorado. 
Dear Sir: 

In your letter of May 22nd, you ask my opinion as to the 

Attorney General of Colorado 183 

rights and duties of county assessors in the matter of the assess- 
ment of shares of bank stock when such shares are preferred 
stock issued and sold to the Reconstruction Finance Corporation, 
a federal agency. 

The method of assessment of shares of bank stock is pre- 
scribed in Sees. 7450-7453, Compiled Laws of Colorado 1921, the 
procedure being as outlined in your letter. 

By the provisions of Sec. 51d, Title 12, Banks and Banking, 
U. S. C. A., the Reconstruction Finance Corporation is authorized 
to purchase preferred stock issued by State banks, and by the 
provisions of Chapter 44, Session Laws of Colorado 1933, State 
banks are authorized to issue preferred stock upon the approval 
of the State Bank Commissioner and by a majority vote of the 
shareholders of such banks, and to sell the same to the Recon- 
struction Finance Corporation. 

The Reconstruction Finance Corporation was created by an 
Act of Congress, approved January 22, 1932. Sec. 610, Title 15, 
Comjnerce and Trade, U. S. C. A., reads as follows: 

''Any and all notes, debentures, bonds, or other such 
obligations issued by the corporation shall be exempt 
both as to principal and interest from all taxation (ex- 
cept surtaxes, estate, inheritance, and gift taxes), now 
or hereafter imposed by the L^nited States, by any Terri- 
tory, dependency, or possession thereof, or by any state, 
county, municipality, or local taxing authority. The cor- 
poration, including its franchise, its capital, reserves, and 
surplus, and its income shall be exempt from all taxation 
now or hereafter imposed by the United States, or by 
any Territory, dependency, or possession thereof, or by 
any state, county, municipality, or local taxing author- 
ity; except that any real property of the corporation 
shall be subject to State. Territorial, county, municipal, 
or local taxation to the same extent according to its 
value as other real property is taxed." 

The Reconstruction Finance Corporation, including its fran- 
chise, capital, reserves, surplus and income, is thereby exempt 
from all taxation imposed by any state, county, municipality or 
local taxing authority, except as to the real property of such 

In view of this statutory provision and in the absence of any 
court decision to the contrary, I am, therefore, of the opinion that 
the preferred stock of a State bank issued pursuant to law and 
sold to the Reconstruction Finance Corporation is not taxable in 
Colorado, so long as such preferred stock is owned by that cor- 

184 Biennial Report 

poration, and, therefore, it should not be shown as taxable upon 
the schedules returned by a State bank to the county assessor. 
Respectfully submitted, 

Attorney General. 

First Assistant Attorney General. 

July 27, 1934. 
Mr. E. B. Morgan, Chairman, 
Colorado Tax Commission, 
State Office Building, 
Denver, Colorado. 
Dear Mr. Morgan : 

You have directed attention to the fact that while in our let- 
ter addressed to you under date of May 26, 1934. we held that 
shares of preferred stock issued by State banks and owned by the 
Reconstruction Finance Corporation are exempt from taxation 
because of their being the property of the Federal Government, 
Or an agency thereof, we failed to state whether or not the same 
rule would apply to shares of preferred stock issued by National 
banks in this State and held by such Reconstruction Finance 

This is to advise that, in our opinion, such shares are like- 
wise exempt from taxation while held and owned by such corpo- 
ration, and this letter is intended as a supplement to our former 
letter to the end that the whole subject may be covered. 

Very truly yours, 

Attorney General. 

First Assistant Attorney General. 


To Governor Johnson, May 26, 1934. 
Insanity after conviction. Appeal as poor person. 

1. "Where a person becomes insane subsequent to his trini 
and conviction of a criminal olTense, under Sec. ()(>39. C. L. 1921, 
the court may impanel a jury and hold an inquest to determine 
the question of the convicted person's sanity. (61 Colo. 187.) 

2. Where the person stands convicted, awaiting sentence of 
death in the state penitentiary and is without funds to perfect an 
appeal, the Supreme Court may, in its discretion, upon pro])er 
motion, allow an appeal to be perfected as a poor person. (Rep- 
pin V. Peoi)le, (^olo ) 

Attorney General of Colorado 185 


To Charles 0. Moser, June 1, 1934. 

Wholesale selling — eggs. 

Retail stores belonging to one organization may turn surplus 
eggs over to the organization egg-headquarters and the same does 
not constitute ^'selling" within the meaning of the Act; however, 
when a retailer disposes of eggs to truckers or dealers outside the 
organization, the transaction constitutes selling within the mean- 
ing of the Act, and the dealer must have a wholesale license as 
required by the Act. (S. L. 1933, Ch. 148.) 


To Dental Board, June 1, 1934. 
Practice by licensed dentists. 

1. Statutes do not prohibit duly licensed dentists practicing 
their profession by means of a partnership. 

2. Do not prohibit use of name ''Dental Group" by a group 
of licensed dentists, or the practice of dentistry under such a 
group name. 

3. Licensed practitioners may be employed by licensed prac- 
titioners and practice dentistry in the name of the individual, 
partnership or group. (Sec. 4575, C. L. '21.) 


To Governor Johnson, June 1, 1934. 

In re: — Contract made by the Industrial Commission to cooperate with 
the U. S. Employment Service and examinations conducted pursuant 
thereto under the Wagn«r-Peyser Act and Ch. 9, 1 Ex. S. L. '33: 

1. Civil Service Commission should not conduct civil service 
examinations in connection with any other agency, but should 
make all final decisions independently. (Colorado Constitution 
Art. XII, Sec. 13 ; 19 Colo. 63.) 

2. Courts Avould probably hold that positions in the Colorado 
State Relief agencies are within the classified civil service of the 
State of Colorado. 


To Doctor C. A. Lory, June 4, 1934. 

"Obligations held or owned by the state." 

Under the provision of Sec. 38, Art. V, of the State Consti- 
tution, the State Agricultural College is prohibited from accept- 
ing refunding bonds in any sum which involves the payment of 
less than the full amount of the obligation of the bonds now out- 
standing and owned by the college. 

186 Biennial Report 

Doctor Charles A. Lory, March 4, 1934. 

President, State Agricultural College, 
Fort Collins, Colorado. 
Dear Doctor Lory : 

You request the opinion of this office Avith respect to a com- 
munication received by your Board from eJohn R. Coen, Attorney 
for the Town of Peetz, Colorado, proposing the exchange of Re- 
funding Bonds upon the basis of thirty cents on the dollar of the 
face value of bonds of the Town of Peetz, now owned by the Agri- 
cultural College. The basis of the offer is the outgrowth of a man- 
damus suit recently heard in the Logan County District Court, 
due to the failure of Peetz to promptly meet the interest due on 
its outstanding bond indebtedness. 

The answer to yoi\r inquiry is found in Section 38, Article V, 
of the State Constitution, ^vhich reads : 

**No obligation or liability of any person, association 
or corporation, held or owned by the State, or any mu- 
nicipal corporation therein, shall ever be exchanged, 
transferred, remitted, released or postponed, or in any 
way diminished by the General Assembly, nor shall such 
liability or obligation be extinguished except by payment 
thereof into the proper treasury." 

While the bonds in question are for the use and benefit of 
the State Agricultural College, yet in legal effect they are "held 
and owned by the State," and therefore clearly fall within the 
language of the above quoted Constitutional provision. It will be 
further noted, that the prohibition contained in this section is 
directed in terms to the General Assembly, but the manifest pur- 
pose of the language is that it apply with equal force to any exec- 
utive officer or administrative board. 

In view of the above quoted language of the State Constitu- 
tion, we are of the opinion that your Board is prohibited from 
accepting the offer sul)mitted, or any offer which involves the 
payment of any sum less than the full amount of the obligations 
owned })y the college. 

Yours very truly, 


Attorney (^leneral. 

Assistant Attorney General. 


To Arthur A. Clements, June 4, 1!):M. 
Kxpenditures in excesn of itemH stated in Budget. 

An exjuiuliture in ext-ess of the amount named in the budget, 

is prohibited by fhr rxpicss icriiis of the Act. 

Attorney General of Colorado 187 

June 4, 1934. 
Mr. Arthur A. Clements, 
City Attorney, 
Paonia, Colorado. 
Dear Sir : 

You submit for our opinion the following inquiry : 

''Has the Town of Paonia authority at this period 
of the fiscal year to make an expenditure of cash from 
its general fund for the purchase of a building to be used 
for municipal purposes, no appropriation having been 
made therefor pursuant to the terms of the Local Gov- 
ernment Budget Act, Session Laws of 1933, page 666?" 

It is our understanding that the town budget was prepared 
and adopted and appropriation by ordinance covering the pur- 
poses therein named was duly enacted within the time and in the 
manner provided by the Budget Act. However, there was no 
specific item of proposed expenditure for the purchase of a build- 
ing for municipal purposes, nor appropriation therefor included 
in the budget. In this connection attention is called to the lan- 
guage found in Section 4 of the Budget Act, wherein it is pro- 
vided, that ''the budget * * * shall present complete financial 
plan for the ensuing budget year," and among other purposes 
shall include "expenditures for capital projects to be undertaken 
or executed during the budget year." 

It is further provided in Section 10 of the Act, that "no offi- 
cer * * * shall during the fiscal year expend =^- * * or enter 
into any contract which by its terms involves the expenditure of 
money for any of the purposes for which provision is made in the 
appropriation ordinance in excess of the amounts appropriated in 
said ordinance * * * for such fiscal year." The section contains 
a further provision making void any contract made in violation 
thereof and prohibiting the payment of any moneys thereon. 

We are assuming that your budget as finally adopted con- 
tained an item for the purpose of providing office space for the mu- 
nicipal officers and the payment of a stated rental therefor. It 
might therefore be argued that an item for payment of rent differs 
from a proposed item for the purchase of a building to provide 
office space for the transaction of the public business of the town, 
and therefore would not fall within the prohibition contained in 
Section 10 of the Act in question. 

However, in view of the wide scope of the language found in 
Section 4, above quoted, and the general purpose of the budgeting 
law, we are of the opinion that a proposed expenditure for the 
purchase of a building to provide municipal offices is of the same 
general purpose as an item contained in the budget providing for 
the rental of space for such purpose, and therefore a proposed 

188 Biennial Report 

expenditure in excess of that named in the budget for the fiscal 
year is prohibited ])y the express terms of the Act. For a discus- 
sion of the general scope and purpose of the Budgeting Law, see 
Chadwick v. Sergei, City Treasurer (111. Sup. Ct.), 110 N. E. 124. 

In this connection it will be noted that Sections 9126 and 
9127, Compiled Laws of Colorado 1921, provide for the making of 
appropriations after the regular annual appropriation has been 
completed under certain exceptional circumstances. It is not en- 
tirely clear to what extent the above provisions have been repealed 
or modified by the 1933 Act, but it is apparent that the Legisla- 
ture by the 1933 enactment attempted to set up a complete scheme 
for the limitation and control of not only ordinary municipal ex- 
penditures, but for capital expenditures as well, through the 
adoption of an annual budget. 

In view of this obvious legislative purpose we are of the 
opinion that the restrictive provisions of the 1933 Act are con- 
trolling in the particulars here involved and that an expenditure 
under the circumstances stated in your letter being beyond the 
amount provided in the regularly adopted annual budget is not 

Yours very truly, 


Attorney General. 


Assistant Attorney General. 

To James R. McClelland, June 4, 1934. 

Re: Railway Savings and Loan Association. 

Creditors of the same class in an association in liquidation, 
must be paid ratably. Payment of small amounts in full at time 
of first liquidating dividend might result in a preference. 
Ex parte Moore, 6 Fed. (2d) 905; 
Cook County Natl. Bank, 107 U. S. 445; 
S. L. 1933, Ch. 47; 114 S. W. 504; 5 N. E. 911, 245 Pac. 


To J. M. f'liildress. June 4, VX\4. 

Practice of law in other county court>«. 

Under Sec. 6014, S. L. *21, the practice of county judjjjes in 
counties of the thir<l, fourth and fifth chisses i.s limited strictly to 

"practice in courts hitdicr than th«'ir (►\vn." 

Attorney General of Colorado 189 

To H. F. Bedford, June 5, 1934. 

In National Park. 

May not impose State license in National Park. (S L. 1921, 
Ch. 155.) 


To Roger M. Chandler, June 8, 1934. 
Denial or revocation of Abstracters' Licenses. 

License is a valuable personal right which cannot be taken 
away except after a full, fair and impartial hearing. (Ch. 57, 
S. L. 1929.) 


To Fred Clark, June 11, 1934. 

Acceptance of bonds in payment of interest and principal assessments. 

When an assessment is made to retire certain specified bonds 
during a particular year, only those specified bonds may be ac- 
cepted in payment of that particular assessment ; and the same rule 
would apply to an assessment to pay interest coupons. 

June 11, 1934. 
Mr. Fred Clark, 

County Treasurer of Prowers County, 
Lamar, Colorado. 
Dear Sir : 

In your recent letter, you call attejition to Chapter 88, Session 
Laws of 1931, relating to Drainage Districts which provides, inter 
alia, that : 

''Provided, such bonds and coupons shall be receiv- 
able in the payment of the assessments levied in payment 
of the interest and the redemption of the bonds.'' 

You inquire what the rule should be, under Sections 2107 to 
2199, Compiled Laws of 1921, as amended bj^ Chapter 88, Session 
Laws of 1931, as to the acceptance of past due and future due 
bonds and coupons in payment of interest and principal assr^ss- 

The above amendment must be considered together with the 
various .sections of the Drainage District law and the construction 
must be adopted which will avoid inconsistencies and absurd re- 
sults and give effect to every part of the act, if possible. 

With this in mind, we call attention to Section 2182, Com- 

190 Biennial Report 

piled Laws of 1921, which provides that the honds shall be ''issued 
payable in series," a!id Section 2167 which requires an annual 
assessment to be levied sufficient to cover ''current expenses of 
the coming year, including" cost of construction, maintenance, oper- 
ating and ordinary expenses, deficiencj' in the payment of expenses 
already incurred, and bond interest unpaid, also the amount of 
bonded indebtedness, and the principal or interest which will fall 
due during said coming year, such amount to be apportioned among 
the several tracts." 

The amendment permitting bonds and coupons to be accepted 
in payment of assessments was passed in 1931 and cannot be in- 
terpreted so as to interfere with the obligations of the contracts 
represented by bonds and coupons issued in accordance with the 
above provisions of the drainage district law before amendment. 

We have been unable to find any reported cases upon the 
point, but based upon the above considerations we believe that the 
courts would hold the interpretation of the amendment to be that 
bonds or coupons may be used to pay such assessments as are levied 
for the purpose of retiring those particular bonds or coupons only, 
or to put it another way, when an assessment is made to retire 
certain specified bondn during a particular year, only those speci- 
fied bonds may be accepted in payment of that particular assess- 
ment, and the stmie rule would apply to an assessment to pay off 
interest coupons. 

If future due bonds or past due bonds of previous years were 
accepted in payment of a current assessment, the result would be 
that these bonds would be in effect retired out of order, and the 
statutory recpiirement that the bonds be retired serially would 
not be fulfilled. Another result would be that for every such 
bond accepted in payment of assessments, and in effeet retired out 
of order, another bond, payable during the current year would 
be defaulted. Such a practice would be an interference with the 
obligation., of the contract representee! by such presently due bond, 
and would be illegal. 

If an annual assessment is made payabb*, for eonvenience, in 
two installiiicnts, i)oth installments could hv paid at once by pre- 
senting a presently due bond or coupon dcpcndiiiir n|)0!i what the 
assessment was levied for 

We understand and a.ssume tliat the unironii practict" lias been 
to levy separate asHessments for principal, interest, and running 
expenses. If a different practice prevails in some districts, we 
still believi' that the same rule must apply, that the only bonds 
and eoupi'ns which nuiy be use<l to j)ay an a.ssessnient are those 

Attorney General of Colorado 191 

bonds and coupons v/hich that particular assessment was levied 
to retire. 

Very truly yours, 


Attorney General. 

Assistant Attorney General. 


To Colo. Tax Commission, June 21, 1934. 

Exemption of Kent SchooU 

The action of the local authorities in the matter of exemp- 
tions or abatement of taxes is not final until approved by the Colo- 
rado Tax Commission. In cases where there is doubt as to whether 
or not the property of an institution should be regarded as ex- 
empt from taxation, the question should be referred to the courts 
for final determination. 


To B. F. Stapleton, June 21, 1934. 

Expenses of delegates to conventions. 

Delegates to Interstate Conferences, who are appointed by the 
Governor for the purpose, of securing information as a basis for 
future legislation, are entitled to their actual and necessary ex- 
penses, out of the appropriation made for expenses of the mem- 
bers of the General Assembly and for other purposes, if there are 
sufficient funds remaining in such appropriation. 


To Jackson Cochrane, June 22, 1934. 

Divisible surplus. 

A policy of life insurance cannot be sold as a participating 
contract where dividends are in fact not apportioned annually 
although represented to be credited through a reduction in pre- 
miums for the initial ten years of the policv life. 
Sec. 2522, C. L. 1921. 


To D. X. McDonald, -lune 26, 1934. 

County Judge 4th class County. 

A county judge in a fourth class county may not retain fees 
collected and bill the countv for the balance of his salary. (Sec. 
7923, C. L. '21; S. L. 1927, p. 337; 21 Colo. 144; 53 Colo. 527.) 

192 Biennial Report 

To T. P. Detamore, June 27, 1934. 

On land leased to a tenant. 

The Hail Insurance Act does not specifically cover the point, 
but there seems to be nothing in the act to prevent or prohibit 
the owner of two tracts of land, one of which he occupies and the 
other he rents to a tenant, from authorizing an assessment of a 
hail tax on the land which he occupies to protect the crop on the 
land of his tenant. 


To J. R. McClelland, June 28, 1934. 

Losses through sale of real estate. 

Losses suffered through sale of real estate need not be directly 
absorbed from current earnings. All losses should be charged to 
Reserve for Contingent Losses. Said Reserve must, however, be 
restored from current earnings to meet the minimum requirements 
of the statute. 

Sees. 12 and 26, Art. IX. Building and Loan Code. 


To J. R. McClelland, June 29, 1934. 

Borrowing by members. 

A borrowing member of a building and loan association may 
not liquidate his indebtedness to the association by purchasing 
stock of non-])orrowing members and turning same in for credit 
when there is a waiting withdrawal list. 


Conservative Homestead Assn. v. Dreyfuss, 143 So. 356; 
Dyer v. Dodge, 131 So. 740 ; 
IMiblicker V. Potash Bros. B. & L., 159 Atl. 58; 
Ouardian B. &- L v. McAllister, 270 Pac. 478. 

To Adair Ilotchkiss. June 30, 1934. 

Local budget. 

The Local I^udgct Law does not limit the counties in the ex- 
pcnditnrc of money accruing to the county Old Age Pension Fund 

nil. Iff tl-r Sf.'itc A(*t. 

Attorney General ob^ Colorado 19'J 

June 30, 1934. 
Mr. Adair J. Hotchkiss, 
County Judge, 
Grand Junction, Colorado. 
Dear Judge Hotchkiss: 

We have at hand your recent inquiry in which you state that 
the Board of County Commissioners of Mesa County made an ap- 
propriation of $15,000 for the Old Age Pension Fund to be paid 
out of the receipts from liquor taxes and from other sources pro- 
vided for in the Old A ge Pension Act ; that the budget was made 
up accordingly; that there is now more than $15,000 in the Old 
Age Pension Fund, and that you, as county judge would like to 
use the rest of the money in the fund to take persons off of the 
County Poor Farm rolls, and place them upon the Old Age Pen- 
sion roll. You ask whether this can be done or whether on the 
contrary you are bound by the budget not to exceed the $15,000 
appropriated for old age pensions. 

After a study of the local Government Budgets Irav, Chapter 
125, S. L. 1933, and the Old Age Pension Act, Chapters 144 and 
145, S. L. 1933, we are of the opinion that you may disburse the 
moneys in the County Old Age Pension Fund as you see fit re- 
gardless of the budget. 

The Old Age Pension Act begins as follows: 

''There is hereby established and created, in and for 
each of the Counties of this State, an Old Age Pension 
Fund, to consist of such funds, moneys and property as 
hereinafter provided, and which fund is to be managed, 
handled and expended in the manner hereinafter provided. 

"The following property funds, moneys and sums 
shall be appropriated to, and shall be a part of the Old 
Age Pension Funds." 

Other sections of the act provide that income from certain 
local taxes shall be paid directly into the County Pension Fund 
(Ch. 144, Sec. 3), and that the income from certain other taxes 
shall be turned over to the State Treasurer and by him allocated 
to the various County Pension Funds according to the population 
of the Counties. (Ch. 144, Sec. 2, and Ch. 145, Sees. 1 and 2). 
Section 12 of Chapter 144 gives the County Court authority to 
issue certificates to pensioners stating the amount to be paid 
monthly or quarterly, and section 26 provides that the ''County 
Treasurer shall pay out (of) the amounts ordered to be paid as 
pensions pursuant to this Act. The word "of" in this sentence 
is obviously a typographical error and should be omitted. 

Thus a state law sets up a state-wide system of Pensions, pro- 
vides the necessary funds and appropriates such funds for the 
purposes of the act, appointing the County Courts to choose the 

194 Biennial Report 

recipients. The local governments have no power over this money 
which is collected and appropriated by statute. 

Another Section (26) provides that the Board of County Com- 
missioners may appropriate further money to the Pension Fund 
if needed. This money would be appropriated out of the Gen- 
eral County funds, would have to be included in the budget and 
could not be overdrawn. However, that is not your situation. 
In your case certain money in excess of $15,000 was provided bj- 
the State law for thc^ use of your Pension Fund and was appro- 
priated by the same law. The County Board purported to appro- 
priate $15,000 of this money for the purposes for which it was 
already appropriated by the State law. This action and the in- 
clusion of this appropriation in the budget was not effective to 
restrict the power of the County Court to use all of the money 
appropriated by the State Statute to the County Pension Fund. 

Yours very truly, 


Attorney General. 

Assistant Attorney General. 


To Una S. Williams. July 9, 1934. 

School budgets. 

In third class school districts, in order to chang:c any item in 
the budget, it is necessary to call a special meeting of the electors : 
and tho county superintondont has no authority to strike* any item 
from the budget. 


To :\rrs. Lewis. July 10, 1034. 
Minimum salary law — "special teachers." 

Only a full-time teacher of rcculnr subjects mnv roceivo ben- 
ofits of "Minimum Salary Law. 

A full-time tcachei* is one wlnt t(;icli('s ;it h-nsl four Ixmrs a 
school day. (Sec 8451, C. L. '2L 

To 11. V. Bedford. .Inly 12, 1934. 

Warrants issued in payment for hcaliiiir plant. 

Warrants is*«ued for the pnrposi- of constructincr a heating 
T.l.iiit ;it tin Sijiti T(;nlM'rs ('nlb'izc jiro valid oblitrat io!is of the 

Attorney General of Colorado 195 

State and, in view of the fact that it appears from the records of 
the Auditor of State that the revenues of the year 1932, against 
which said warrants were draAvn were adequate to pay the same 
after all prior demands against said revenues had been satisfied, 
said warrants may now be called for payment. 


To R. G. Parvin, July 12, 1934. 
Charge for fishing. 

Ch. 89, page 502, S. L. Colo. 1933, prohibits the making of 
any charge to any person for the privilege of fishing in any stream 
stocked at public expense. Must assume Ch. 89 is constitutional. 
(Sec. 6974, C. L. '21.) 


To Mabel Waldron, July 14, 1934. 

When County Clerk may abstract. 

If there is no bonded abstracter in the county, the county 
clerk may be required to prepare real estate abstracts. (S. L. 
1929, Ch. 57, p. 183; Sees. 8742, 2652, C. L. '21.) 


To J. H. Ellis, July 16, 1934. 

Incompatible offices. 

Deputy w^ater commissioner is an officer ''under the State" 
and cannot be a member of either house of the Legislature during 
his continuance in office. (Colo. Const., Art. V, Sec. 8, Sec. 1919, 
C. L. '21; S. L. 1923, p. 392; S. L. 1929, p. 419. People v. fliggins, 
67 Colo. 441.) 


To Paul Littler, July 16, 1934. 

Trustees of the Firemen's Pension Funds have no authority 
to expend the moneys in such fund in the purchase of insurance 
upon the lives of firemen. (Sec. 9362, 9344, C. L. '21; S. L. 1929, 
p. 354.) 


To Grant McFerson, July 19, 1934. 

Examination of 

Under Ch. 66, S. L. 1933, the Bank Commissioner is required 
to examine all industrial banks at least twice a year and if such 

196 Biennial Report 

institution appears to be insolvent he should proceed to liquidate 
the same in like manner as other banks are liquidated under the 
Banking Act of 1913. If the Bank Commissioner finds from such 
examination that an Industrial Bank is habitually exacting 
greater rates of interest on loans of less than $500 than provided 
by Ch. 68, he should report the fact to the proper district attorney 
in order that he may bring quo warranto proceedings against the 
oifending corporation, if he finds that the facts warrant such ac- 
tion. (S. L. 1913, Ch. 44; S. L. 1919, Ch. 159; S. L. 1923, Ch. 66.) 


To H. A. Lennarts, July 24, 1934. 

Mining property, redemption. 

When mining property with improvements thereon is sold for 
taxes, the owner cannot redeem the land separately leaving the 
improvements unredeemed. (Sees. 7430, 7193, 7262, 7402, C. L. 
'21; S. L. 1925, p. 441.) 


To Clarence S. Bullock, July 26, 1934. 
Probate fees. Attachment fees. 

1. In a county of the fourth class, under the provisions of 
S. L. 1905, page 243, which amended Sec. 7869, C. L. 1921, the 
proper docket fee to be charged in an estate inventoried at $1,600 
is $15.00, to be paid at the time of filing of inventory, and there 
is no further sum due. 

2. Under the provisions of Sec. 7873, C. L. 1921, as amended 
by S. L. 1923, page 249, the fee payable by plaintiff in attachment 
proceedings is fixed at $12.50; and in case of intervention, the 
intervener should pay tlie same amount as the original phiintitT. 


To John Abcll, July 26, 1934. 

Revocation of appointment of election judge. 

Board of County Commissioners cannot revoke its appoint- 
ment of election judge. (S. L. 1931, Ch. 92; 46 C. L. 954.) 


Tn Tlioinas Aunear, .July 2(i. 1!>:M. 
Jurisdiction to conduct hearings. 

The Industrial Conimi.ssion of Colorado has jurisdiction under 
Src. 37 of th«' Industrial (\>ni.mission .\<'t of 1015, to conduct hoar- 
iinjH f(»r tlir ])nipns«' of conciliating labor disputes, and the Na- 

Attorney General of Colorado 197 

tional Recovery Act of 1933 does not divest the Industrial 
Commission of such jurisdiction, even though the industries af- 
fected are engaged in interstate commerce. (22-page opinion.) 
(C. C. H. F. T. R. Service, Vol. II-A, p. 10068, par. 10083; Execu- 
tive Order, Dec. 16, 1933; Sees. 4331, 4353, 4355, C. L. '21; 86 
Colo. 377, 5 R. C. L. 702.) 


To Mrs. May C. Ditch, Aug. 2, 1934. 

Dwelling on precinct line. 

Where a precinct line runs through a dwelling house, the 
owner is entitled to vote in the precinct in which the larger part 
of his dwelling is situate. 


To Jas. R. McClelland, Aug. 3, 1934. 

Conversion of State Association into Federal Association. 

Conversion of a State B. & L. Assn. into a Federal Savings & 
Loan Assn, is not completed by mere vote of approval by share- 
holders. Conversion is not effectuated until the Home Loan Bank 
Board approves application made on Form **G." 


To Henry W. Marschner, Aug. 3, 1934. 
Change of party affiliation. 

Under Ch. 91, S. L. 1931, change of affiliation in cities of over 
100,000 in population can be made only by making a signed state- 
ment in person to an officer in charge of registration at the first 
time and place provided for registration in such voter's precinct 
in any year in which a primary election is to be held ; or 

By written request of the voter addressed to a member of the 
registration committee of his precinct at least 10 days before the 
first registration day in the precinct. 

See also supplementary opinion attached. 


To M. C. Hinderlider, State Engineer, Aug. 7, 1934. 

Re: Monument Reservoir. Title to land and reservoir. 

With respect to inquiry as to authority of the Legislature to 
make an appropriation for the construction of a reservoir on land 
belonging to the State, it is our opinion that the Legislature liad 

198 Biennial Report 

full authority to make the api)ropriation as provided by the Ses- 
sion Laws of 1891, page 352, for the purpose of constructing the 
Monument Reservoir in El Paso County to store flood waters to 
be used for irrigation and other beneficial uses upon State land. 
In re : Appropriation of moneys, etc., 12 Colo. 287. 
The fact that thereafter the Legislature (S. L. '99, page 350) 
by enactment, provided that the county commissioners in any 
county wherein a State reservoir is situated, shall have charge 
and control of and shall, without expense to the State, maintain 
such reservoir in good condition and provide for storage of water, 
as contemplated in said Act, does not, in any way, affect the title 
to the reservoir or the land on which it is located, and such title 
remains in the State of Colorado. 

352 SCHOOL LAW— Transportation 
To Ernest Tiemann, Aug. 7, 1934. 

To Parochial School. 

A school board cannot be required to furnish transportation 
to children attending a private school, but may contract for this 

To V. T. Xoxoii, Aug. 8, 1934. 

Of County Commissioner. 

There is no provision for the recall of a county commissioner. 
(Hall V. Commissioners, 73 Colo. 74; Colo. Const., Art. 21.) 


To RomiUy Foote, August 9, 1934. 


Hoard of county cominis.sioucrs tucIN- not abate a portion of the 
taxes due and allow owner to redeem for less than the taxes plus 
interest and penult v. Const. Art. V, Sec. 38; Sees. 7430, 74H0, 
7422, (V L. 1921. 

To James Patterson, Aug. 20, 1934. 
By JuKtice of Peace. 

A ^n*>'""'' "' till' tM'Ufi- T!i;i^ ^( .liiii II 1 vi- III -I IT 1 ;nri' ni!ts;ii1.» liiv 


Attorney General of Colorado 199 


To F. P. January, Aug. 20, 1934. 

Vacancy in office of County Judge. 

A vacancy in the office of county judge, occurring- after the 
party convention but before the primary election may be filled by 
members of the party writing in the name of any candidate at the 
primary election, or it may be filled by the vacancy committee after 
the primary election. 


To Elliot E. Freemen, Aug. 21, 1934. 

School Directors. 

District of the second class automaticalh^ becomes a district of 
the first class Avhen census exceeds 1,000. 


To J. E. Ragan, Aug. 21, 1934. 

County Protective Association. 

A school district should not become a member of a county Pro- 
tective Association, as by doing so the district becomes a shareholder 
in a corporation contrary to the provisions of Sees. 1 and; 2, Art. 
XI, Colorado Constitution. 


To Thos. Annear, Aug. 22, 1934. 

Unexpended balance of appropriation. 

The unexpended balance of appropriation made to allow the 
state to cooperate with the U. S. Employment Service "during the 
current fiscal year," is not subject to expenditure during the fol- 
lowing fiscal year. 


To Ben F. Stapleton, Aug. 22, 1934. 

Administrative expenses of Liquor Department. 

Administration expenses of the Liquor Permit and License 
Department are payable out of the General Revenue Fund and not 
out of the special fund established bv Ch. 12, S. L. 1933. (Ch. 144, 
S. L. 1933.) 

200 Biennial Report 


To Jackson Cochrane, Aug. 24, 1934. 

Admission of foreign mutual companies. 

Foreign insurance company incorporated under Mutual Assess- 
ment Companies Act of Texas is eligible for admission under Sec. 
2548, C. L. 1921, but not under Mutual Act, Sees. 2557-2575 inc., 
C. L. 1921. 

To Thomas Annear, Aug. 24, 1934. 

Employes of Colorado State Employment Service. 

Employes of the Colorado State Employment Service affiliated 
with the U. S. Employment Service, under an Act of Congress and 
Ch. 9, First Extra S. L. 1933, are subject to the requirements of 
Ch. 157, S. L. 1931, providing for a retirement fund for State em- 


To E. B. Hatcher, Aug. 24, 1934. 

Illiterate voters. 

Illiterate voters may be given aid in both the primary and gen- 
eral elections. 

Mr. K. B. Hatcher, 
Election Commissioner, 
Pagosa Springs, Colorado. 
Dear Sir: 

Mr. Prosser has referred to me your inquiry as to whether 
an illiterate voter may be aided. 

To answer your inquiry it is necessary to carefully examine 
the various statutes upon this subject. 

The election law of 1S91 provided that physically disabled and 
illiterate voters and also voters who could not read P^nglish could 
be aided if they took an oath, etc. (S. L. 1891, p. 160; K. S. 1908, 
Sec. 2261.) Later when the primary law was pa.ssed this provision 
became applicable to both General and Primary Elections. 

In 1913, the "Headless Ballot Act" forbade any voter to be 
aided "except in case of absolute and total j)hysical disability." 
That law api)licd only to ^'cneral elections so the result was that 
in primary elections the 1891 law applied and illiterate and phys- 
ically disabled voters and voters who could not read English could 
be aided if they took an oath as provided in the law. but in general 
elections no voter could l)c aid«'d unless under total physical dis- 
ability. (Opinions of Attorney (Jeneral, 1925-1926, .\o. 223.) 

In 1927, an act wits passcMl entitled "An Act relating to elec- 

Attorney General of Colorado 201 

tions and providing for assistance for disabled voters," This law 
permits voters who are disabled to receive assistance in both 
primary and general elections. It covers the same ground as the 
1913 act, removes the prohibitory words, and maJ^es the law per- 
missive as to disabled voters. The question is whether, now, an 
illiterate voter may be aided at general elections, as well as at 
primary elections. 

Under the rule announced in the case of Heinssen v. State, 14 
Colo. 228, 236, we are of the opinion that the exception to the 1891 
law imposed by the 1913 act, which, in effect, forbade assistance 
to illiterate voters in general elections, has now been removed by 
the law of 1927 which replaced the 1913 act, and the old general 
law of 1891 is again in force and that, now, illiterate and disabled 
voters and voters who cannot read English can be assisted at both 
primary and general elections, if they take an oath before the elec- 
tion judges as provided. (Election Laws, pages 119, 124.) 

In relation to the rule that the repeal of a repealing act should 
not revive the act repealed, the Heinssen case, supra, states : 

ii* * * The rule against this relates to cases of 
absolute repeal, and not to cases where a statute is left in 
force, and all that is done in the way of repeal is to except 
certain cases from its operation. In such cases the statute 
does not need to be revived, for it remains in force, and, 
the exception being taken away, the statute is afterwards 
to be applied without the exception." 
See also: 

Terminal Co. v. Jones, 84 Colo. 279, 285. 

This is in accord with the opinion of this office rendered under 
date of September 24, 1932, to Mr. L. C. Kinikin, County Judge, 
Montrose, Colorado, being No. 282, Opinions of Attorney General, 

Very truly yours, 


Attorney General. 

Assistant Attorney General. 


Incurring obligations and issuing warrants in excess of appropriation. 

Sept. 1, 1934. 
Honorable James M. Noland, 
District Attorney, 
Durango, Colorado. 
Dear Sir: 

Your letter of the 20th ult., and also of July 17th, came duly 

202 Biennial Report 

to hand. We regret very much that your letters have not received 
more prompt attention, but the delay has been caused by unusual 
emerprencies in this office. You state that it appears from a report 
of your county accounts to June 30, 1934, that the sheriff has 
used up all of the expense account as provided for in the 1934 
l)ud«:et, and that your board of county commissioners has notified 
the sheriff that they will refuse payment of anj^ further bills for 
administration of his office other than for salaries. You point out 
that this action of the board necessarily affects the service of 
criminal warrants, penitentiary mittimuses, etc. 

Upon this state of facts you ask to be advised whether in our 
opinion the sheriff could recover from the county his necessary ex- 
penses for the balance of the current year in the administration of 
his office and particularly, as we understand expenses incurred in 
the service of process in criminal cases. 

It is of course fundamental that one of the primary obligations 
of a county is to see that the essential functions of government 
therein are carried on and there is no more essential function than 
that of enforcing the penal laws enacted for the protection of life 
and property. The matter is one that should by all means be ami- 
cal)]y adjusted between the county board and the sheriff in the in- 
terest of orderly government and the peace and safety of the com- 
munit}'. I'nder the statutes of this state the district attorney is 
the official adviser of county boards, although the statutes also pro- 
vide that boards of county commissioners may employ counsel to 
advise them. We couhl perhaps answer your ([uestion with more 
assurance if we had a more complete knowledge of the state of your 
county finances. For exam])le : If the county has <ui incidental or 
contingency fund for emergencies, then such exj)enses as you men- 
tion could beyond a doubt be paid out of such a fund, and the 
sheriff, we believe, could compel such payment. See La Plain Comi- 
ty V. Hampsan, 24 (!olo. 127. Aside from this, however, our Su- 
preme Court recognizes the right of a county in cases of emerg(Miey 
to incur obligations and to issue warrants in exces.s of the annual 
ap|)ropriation which the law requires county boards? to make. See 
Bfnt (Umnty v. Santa Fe Ry. Co., 52 Colo. (>()9 and Citmmiss^ioners 
r. Vmon Piwiflc li. li. Co., iS\\ Colo. 143. I'nder the authority of 
these decisions we believe that in the emergency which confronts 
the sheriff, he would be justified in continuing to perform his statu- 
tory dutit's in the si-rvicc of criniinal process and that the courts 
woidd re<'Ogniz«» the validity of bills rendered in the performance 
of such services. 

We Hay again, however, that the utniunt effort shouhl be nuide 

Attorney General of CoijOrado 203 

to bring about an amicable understanding in this vital matter of 

Yours very truly, 


Attorney General. 
Assistant Attorney General. 


To Thos. Annear, Sept. 1, 1934. 
Interstate carriers. 

The provisions of the Workmen's Compensation Act of Colo- 
rado do not apply to interstate carriers or to their employes. 


To H. F. Bedford, Sept. 12, 1934. 

Waiver of interest on bond held by Industrial Commission. 

The State Treasurer may, in collecting a bond held by the In- 
dustrial Commission and overdue, waive the interest and accept 
payment of the principal of the bond, at the direction of the Indus- 
trial Commission. 

Sec. 4497, C. L. 1921, 71 Colo. 133. 


To R. L. White, Sept. 13, 1934. 

Election of County Chairman. 

For the purpose of choosing a County Chairman only those 
who are candidates for county offices are alloAved to participate. 
A justice of the peace is a precinct officer rather than a county 
officer, and is not supposed to take part in such choice, unless he 
is a precinct committeeman. 


To Dr. Maurice H. Rees, Sept. 13, 1934. 

Hospitalization fees. Power of County to issuie emergency warrants. 

S. L. 1923, page 675, gives the hospital power to refuse to 
receive further patients from counties that make no acknowledg- 
ment of their indebtedness to the hospital for the care of patients 
theretofore received from such counties. 

The Supreme Court of this State has many times recognized 
the right of a county to issue excess or emergency warrants where 
it is necessary, in order to carry on the prime functioiis of county 

204 Biennial Report 

government, including the care of its own sick and distressed ])oor 
(See La Plata County v. Hampson, 24 Colo. 127; Bent County v. 
Santa Fe Ry. Co., 52 Colo. 609; Commissioners v. U. P. R. R.* 63 
Colo. 143). 

The county board may refuse to make further payments to the 
hospital for the care of such patients, even though, in the opinion 
pf the hospital staff, he should still be cared for in the hospital, 
for the reason that the determination of the necessity and extent 
of poor relief is committed by law to the respective boards of 
county commissioners. 


To E. W. Jordan, Sept. 17, 1934. 

Filling of vacancies. 

AVhere a political assembly fails to make a designation for 
nomination to a public office and where the electors of the party at 
the primaries like^vise fail to make the nomination, then the vacancy 
committee appointed by the assembly may, after the primary elec- 
tion, fill the vacancy in such nomination. If no vacancy commit- 
tee was appointed, then the county central committee of the party 
may fill such vacancy. (See Opinion to H. L. Meyer, Sept. 27, 
1934, citing cases.) 


To Alden W. Pool, Sept. IS, 1934. 

Purchase of coal from code violators. 

Contrary to public policy and in violation of the spirit of H. B. 
67, Second Extra Session of the 29th G. A. for the State R«»lief 
Committee to purchase coal from operators who have violated the 
Code for the Bituminous Coal Industry. 


To Paul Littler, Sept. 19. 1934. 
Sale of intoxicants on election day. 

Beer and ^^'ine can be sold on election day in restaurants, if 
consumed on the premises. But no intoxicating: licpiors whatever — 
ncitlicF- beer, nor wine, nor hard licjuor — may l)e sold in licjuor 


To K. S. Secretary, Sept. 19, 1934. 

InHpection fees. 

The State liotird of Stock Inspection Commissioners ha.s no 
pciwcr to adopt ,i rnlc rrcpiirinpr inspection of cattle before they can 
be Kolfl at public auction ; 

Attorney General of Colorado 205 

Nor to inspect and collect an inspection fee for cattle killed 
upon the premises where purchased, although it would be unlawful 
for anyone to buy the carcasses (except the U. S. Government) 
until an inspection has been made (Sec. 7, Ch. 162, S. L. 1931) ; 

The charging of the 5-cent fee is mandatory when an inspec- 
tion is made. (Ch. 162, S. L. 1931.) 


To H. F. Bedford, Sept. 20, 1934. 

Redemption of. 

The provisions of Sec. 355, C. L. 1921, for the payment of the 
Insurrection Bonds of 1914, have the effect of limiting the calling 
of these bonds for redemption to ten per cent thereof per year. 


To George Fischer, Sept. 20, 1934. 

Emergency warrants. 

Where an actual emergency exists which could not well have 
been foreseen by the county commissioners at the time of the mak- 
ing of the preceding annual appropriation, the courts would uphold 
the right of the board to issue emergency warrants and subse- 
quently levy taxes to pay the same. 


To Wm. E. Higby, Sept. 20, 1934. 
Refunding of. 

A legislative act would be necessary to refund State bonds 
which are noAv optional. 


To Rev. M. W. Lindsey, Sept. 20, 1934. 

Power of County Commissioners to supplement. 

Under Sec. 26, Ch. 144, S. L. 1933 (the Old Age Pension Act), 
the county commissioners may appropriate additional sums to sup- 
plement Old Age Pension Fund. 


To F. W. Medlen, Sept. 20, 1934. 

Appropriation necessary for expenditure. 

The county board has no authority to expend county funds to 
meet State road funds for construction of roads in county where nr 
appropriation has been made. 

206 Biennial Report 


To Samuel Chutkow, Sept. 20, 1934. 


Sec. 7444, C. L. 1921, covers questions of refunds of taxes in 
the following circumstances : 

1. Where taxes were paid and the land thereafter sold errone- 
ously for unpaid taxes to a third person ; 

2. Where taxes were paid and the lands thereafter errone- 
ously sold to the county ; 

3. Where a tax sale certificate was owned by the county and 
thereafter a sale made to a third person. 


To Jackson Cochrane, Sept. 21, 1934. 

Reinsurance contracts. 

The Pacific States Life Ins. Co., having mutualized under the 
Cochrane Lien Act of 1933 (Ch. 112, S. L. '33), is subject to pro- 
visions of Sec. 2537, C. L. 1921, in entering into reinsurance con- 
tracts. Two-thirds affirmative vote. of policyholders is necessary to 
effectuate reinsurance. 


To Jackson Cochrane, Sept. 22, 1934. 


Ch. 117, Sec. 10, S. L. 1925, prohbiting reinsurance of (til out- 
standing business in a company not licensed to do business in Colo- 
rado does not apply to the reinsurance of only a minor part of a 
company's business. Pacific States Life Ins. Co. may reinsure 
Texas business in Texas company, not licensed in Colorado. 
Citing numerous cases. 


To Orville Swain, Sept. 26, 1934. 
Written dedications. 

\iiu\vr Sec. 7542, C. L. '21, jts amended at p. 331, S. L. '31, a 
voter at a primary election shall bo entitled to vote for any other 
eligible person who is a m(»ml>er of his political party • • • by 
writing the nmnc of such person in the blank space following the 
printed names of candidates for such office. 

In ordor for any person to become the nominee of any political 
party, he must receive at least tlie number of votes at any primary 
election iis is now re(|uire(l by law to become designated by petition 
for any of the offices at a primary election. 

Attorney General of Colorado 207 

Under Sec. 7536 the petition of a candidate for a county office 
must be signed by 100 duly qualified electors resident within the 
county or 10 per cent of gubernatorial votes cast at last election. 


To Alfred Todd, Sept. 26, 1934. 

Payment of assessments with Drainage District bonds and coupons. 

Drainage district bonds and coupons may be used to pay drain- 
age district assessments only when those assessments are levied to 
pay those particular bonds and coupons. 
Citing statutes and cases. 


To Blanche Farmer, Sept. 26, 1934. 

Newspaper which is not in whole or in part printed in the 
county wherein a legal notice or advertisement is required to be 
published, does not meet the requirements constituting a legal pub- 
lication. (S. L. '31, p. 441,) 


To C. D. Shawver, Sept. 27, 1934. 
Garnishment of Fedieral Relief Funds. 

Federal relief funds are not subject to garnishment. 

While the State statutes provide that state, city and city em- 
ployes may be garnished, we believe that state, city and federal 
relief funds are exempt on the theory that funds appropriated for 
the relief of the poor cannot be diverted to any other purpose. 


To J. A. Creel, Sept. 27, 1934. 
Abatements — Reductions. 

County board may not reduce or abate taxes except for mis- 
take or illegality in original assessment. (Sec. 7460, C. L. '21.) 

County treasurer cannot issue tax receipt unless taxes are fully 


To F. L. Macartney, Sept. 27, 1934. 

Residents of district living in relief camps may attend school. 
(Ch. 163, S. L. 1933.) 

208 Biennial Report 


To Wm. Hall Thompson, Sept. 27, 1934. 

Subsequent taxes. 

Purchaser of tax sale certificate may, after three years, obtain 
deed, although taxes subsequent to sale have not been paid. (26 
Colo. 279.) Supplementary letter attached — intervening tax sale 
would probably not change holding. (59 Colo. 164, 65 Colo. 385; 
70 Colo. 77; 71 Colo. 327; 75 Colo. 86; 87 Colo. 474, Sec. 7430, 
C. L. '21.) 


Vacancies in nominations. 

September 27, 1934. 

Mr. Harry L. Moyer, 

County Clerk and Recorder, 
Fairplay, Colorado. 

Dear Sir: 

This will acknowledge receipt of your letter of September 18th, 
in regard to a vacancy on the ballot for the office of County Super- 
intendent of Schools, in which you state that there was no designa- 
tion by the County Assembly for this particular office, and also that 
the names of two candidates were written in on the ballot, neither 
of whom received enough votes to be nominated at the primary-. 

The failure of sufficient persons to write in the names of candi- 
dates enough times to secure a nomination at the primary would not 
constitute being ''defeated as a candidate in a primary election** 
within the inhibition of Section 5. page 52, Election Laws of Colo- 
rado 1934. 

As to whether or not there is such a vacancy as the Vacancy 
Committee may be entitled to fill is a very close question which 
should be decided by yourself upon advice from your County or 
District Attorney, or the leaders of the political party affected by 
the vacancy. Our office has held that in such a case a vacancy com- 
mit tee is empowered to act und(»r the decision of the Nebraska Su- 
preme Court in the case of Stair of Nebraska ex rcL v. TTarrtf E. 
Wells, cited in 92 Neb. 337, 138 N. W. 165, 41 L. R. A. (N. S.) 
1088. Other eases touching on the point are: 130 Southern 721; 
292 Pacific 396; 250 Pacific 268; 233 Northwestern 648; 91 North- 
western 1101 ; 97 Southen.stern 284, 302. 

The general principles are stated in 20 Corpus Juris. 109. 127; 
9 R. C. L. 1089. 

Tn the event that the Vacancy Committee tenders you a eer- 

Attorney General of Colorado 209 

tificate of nomination to fill a vacancy, our recommendation is that 
you accept it for filing. 

Very truly yours, 

Attorney General. 
Deputy Attorney General, 

390 TAXES— Stamps 

To A. H. King, Sept. 28, 1934. 

Revenue stamps. 

Sec. 725 of the Federal Revenue Act of 1932, imposing stamp 
tax on deeds and conveyances, does not apply to land patents issued 
by the State of Colorado. 


To C. R. Furrow, Oct. 3, 1934. 
Nominations, absent voters. 

1. Sec. 7557, C. L. 1921, governs the nomination of candi- 
dates of political organizations such as Socialist, Farmer-Labor, 
etc. (Sees. 7532, 7583, C. L. '21.) 

2. Offices of Justice of the Peace and Constable are governed 
by Sec. 7542 as amended by Ch. 91, S. L. '31. Committeemen and 
committeewomen are governed by party rules. (Sec. 7536, C. L. 
'21, Ch. 98, S. L. 1927.) 

3. The signers on a nominating petition need not be of the 
same political faith as the nominee. 

4. Absent voters should not mail ballot prior to election day, 
ballot may be postmarked on the day subsequent to election day if 
the ballot was marked on election day. 


To Benjamin F. Stapleton, Oct. 5, 1933. 

Old outstanding State Compensation Insurance warrants may 
be posted for cancellation. 


To Grant McFerson, Oct. 13, 1934. 

A foreign bank as testamentary trustee. 

There is no statute in this State authorizing a foreign bank or 
trust company to act as executor or testamentary trustee. (Sees. 
2744,2765, C. L. '21.) 

210 Biennial Report 


Creation of special County funds. Replacement of moneys embezzled 
from State, County and School District funds. 

October 19, 1934. 
Mr. George Fischer, 
Adams County Attorney, 
108 Bridge Street, 
Brighton, Colorado. 

Dear Sir : 

Replying to your letters of October 10th, we find nothing in 
the law forbidding the creation by the county board of a Hospitali- 
zation Fund or an Insurance Fund, but the more usual and proper 
procedure would be to increase the Poor Fund Levy and appropri- 
ation instead of creating new special funds of this kind. 

You ask also whether a special levy should be made to cover 
the $30,000 embezzled by a former county treasurer over a period 
of six years. The proper procedure is to prorate this loss to the 
various funds as you state has been done. 

Then, as to the State revenue collected by the county, the por- 
tion of the loss allocated to this fund must be made up by the 
count}^ in the next three years by additional assessments and levies 
as required by Section 7398, C. L. 1921. 

As to the portions of the loss allocated to the other funds, there 
will be no necessity for a special levy to cover them unless the de- 
duction of the prorated amounts causes outstanding warrants to 
remain unpaid at the end of the period. In that case the board 
should make a special levy to take up outstanding unpaid County 
Warrants, under the authority of Sections 8665 and 8853, C. L. 
1021. If a school district because of the proration of this loss or 
for any other reason finds that it has outstanding unpaid warrants 
at the end of the period it may increase its levy 5 per cent, which 
increase may be used to take up such warrants as well as for meet- 
ing other emergent expenses. Tlic county board will then make 
the levy as certified. 

Likewise a city will certify its levy wliich will cover its nocos- 
sary expenses. 

The county board, howovor. would have no autliority to make 
a .special levy to bring in $30,000 merely because that amount had 
been stolen from various funds during the preceding six years. 
That money must be recovered from the treasurer or his sureties 
and thon distributed to the various funds. 

Tho special Irvios referred to above would be nwide not f«>r the 
piir[)os»' ()? r«'p];iciiii»' the iiiorirv fnkcii. but would be impelled Ity 

Attorney General of Colorado 211 

the necessity of carrying on the business of government until this 
money can be recovered from the treasurer or his bondsmen. 

Yours very truly, 


Attorney General. 

Assistant Attorney General. 


To Mrs. Inez Johnson Lewis, Oct. 19, 1934. 

Expense af printing laws. 

Sec. 8269, C. L. '21, provides that the Superintendent of Public 
Instruction shall have the lawsi relating to public schools printed ; 
and during a period of thirty years the expense of printing the 
school laws has been a charge against the Public School Income 


To A. M. Gooding, Oct. 23, 1934. 

Liability for county funds deposited in failed banks. 

1934 law relieves county treasurer of liability. Gartley case, 
24 Colo. 155, and 28 Colo. 328, and Sec. 8796, C. L. '21— discussed. 
(S. L. 2nd Ex. Sess., 1933-1934, Ch. 9, 10; 25 Colo. App. 312; 92 
Colo. 585.) 


To Kathryn Barkhausen, Oct. 23, 1934. 

Property of beneficiary. 

No statute in this State authorizes the Blind Benefit Commis- 
sion to require the recipient of a blind benefit to donate or transfer 
his property to the county in consideration of the receipt of such 


To Arch Curtis, Oct. 31, 1934. 
Absentee vote; residence of voter. 

The Board of Canvassers has the power to reject an absentee 
voter's ballot when it finds that it is illegal or void. (Opinion No. 
310, Report of Attorney General, 1931-1932.) 

A woman by marrying takes the residence of her husband in 
case he happens to be out of his own county or district at the time 
of his marriage ; and the woman does not need to actually live in 
the district thereafter in order to become a resident thereof. 

212 Biennial Report 

Upon question whether or not a married man may have a resi- 
dence in one place and his wife in another — each case must be de- 
cided upon its own facts. 

To Lafayette F. Crawford, Nov. 3, 1934. 

The law of 1929 is retroactive and controls probate fees accru- 
ing prior to April 25, 1931. The 1931 law is not retroactive, and 
controls the probate fees subsequent to that date. (Opinion No. 77, 
Report of Attorney General, 1929-1930; 11 Colo. 555.) 


To Jackson Cochrane, Nov. 8, 1934. 
Gifts of health and accident policies. 

Plan outlined in letter of Insurance Commissioner, whereby 
merchants give health and accident policies to customers, is free 
from objection under our Insurance Laws. 

See Biennial Report of Attorney General, 1921-1922, Opin- 
ion 10; 
Biennial Report of Attorney General, 1925-1926, Opinion 


To Jackson Cochrane, Nov. 9, 1934. 
Mutual companies. 

Insurance laws governing mutual companies make no provision 
for Commissioner of Insurance to accept and hold deposit required 
by laws of foreign states to enter therein. 


To E. B. Morgan, Nov. 10, 1934. 

Re: Protest of Great Western Sugar Co. 

1. The Colorado Tax Commission probably lias jurisdiction to 
entertain the application of a taxpayer for review of his asses-^^ment 
as made by the county assessor, where such ai)plicati(>n is made be- 
fore the annual meeting of the State Board of K(iualization. 

2. In a case where the county assessor increased the valuation 
of personal property as returned in the schedule filed by the tax- 
})ayer, but failed to give notice of such increjise within the time 
fixed by statute, sueli increases are probably valid where the tax- 
I)ayer actually received notice thereof and was granted a hearing 
by the assessor before the first meeting of the County Board of 

Attorney General op Colorado 213 


To J. R. McClelland, Nov. 11, 1934. 
Permanent Stock Associations. 

1. Losses may be charged against the permanent stock under 
laws of Colorado. 

2. The above does not result in an impairment of the capital 
stock of the association, so as to endanger the solvency of the asso- 


To Maurice H. Rees, Nov. 14, 1934. 

Paying pati'ents. 

Only patients who are unable to pay for medical and hospital 
care should be sent by county boards to the Colorado General Hos- 
pital for care and treatment. 


To Charles W. Bloom, Nov. 17, 1934. 
Tax sales. 

1. Where property is struck off to the county at a delinquent 
tax sale and thereafter the county sells the tax certificate at a dis- 
count, the purchaser thereof, upon redemption from tax sale, is 
entitled to receive the full amount for which the property was sold 
plus penalties and interest. 

2. "Where one purchases real estate which has theretofor e bee n 
sold to an individual for taxes thereon plus personal property taxes 
of the former owner, the purchaser, upon redeeming from the tax 
sale, must pay to the county treasurer the amount of the real estate 
tax for which the property was sold and also the amount of the 
personal property taxes which were included in the tax sale; but 
after having made such payment, he is entitled to apply to the 
Board of County Commissioners for a refund of the personal prop- 
erty tax. 


To James H. Risley, Nov. 22, 1934. 

Re: Proposed amendment to Article X of Colorado Constitution. 

Questions as to whether Section 7 of Article X of the Constitu- 
tion applies to excise taxes and whether income taxes are property 
taxes and subject to Section 3 of Article X, and whether public 

214 Biennial Report 

schools are State agencies or mere local institutions — discussed and 
the following cases cited : 

Altitude Oil Co. v. The People, 70 Colo. 452; 

Walker v. Bedford, 93 Colo. 400 ; 

School Dist. V. Pomponi, 79 Colo. 660 ; 

Colo. Constitution, Sec. 32, Art. V; 

Bachrach et al. v. Nelson, 349 111. 579 ; 182 N. E. 909 (Oct., 


To Homer F. Bedford, State Treasurer, Nov. 23, 1934. 

Additional fee for Old Age Pension Fund. 

The provision of Sec. 1, Ch. 145, Reg. Session Laws 1933, re- 
quiring the paj^ment of an additional one dollar fee for motor ve- 
hicle registration to be applied to the Old Age Pension Fund is 
repealed by the amendment to Art. X of the Constitution, adopts 
at the general election of 1934, which article becomes effective July 
1, 1935. 


To Silmon Smith, Nov. 23, 1934. 

County funds. 

Under the Local Government Budget Act of 1933 (Ch. 125, 
Reg. S. L. '33), counties are entitled to maintain contingent funds, 
and unexpended balances in such contingent funds may be trans- 
ferred to other funds of the county to meet emergencies. 


To Mr. Thomas Annear, Nov. 23, 1934. 

Nuns of Sisters of Good Shepherd Convent not ''employes" 
under Workmen's Compensation Act. 


To Mr. F. T. Henry, Nov. 30, 1934. 

Local Government Budget Act would probably not bo held to 
forbid counties from issuing excess warrants against ordinary 
county revenue to meet absolutely necessary current expenses of 
county government. (Ch. 125, S. L. 1933; 63 Colo. 143.) 

411 TAXATION— (Chain Store) 

To Tlomor F. Bedford, Dec. 1. 1934. 

C'hnin Store Tax does not apply to out of state stores soiling in 
Colorado through traveling salesmen or sample room. (46 Colo. 
3«i2: n Colo. 299.) 

Attorney General of Colorado 215 


To Mr. M. C. Hinderlider, Dec. 6, 1934. 

Duty of water commissioner is controlled by Sec. 1032, C. L. 
1921 (Ch. 152, S. L. 1921), which repealed Sec. 3430, R. S. 1908. 


To Mr. Allen C. Phelps, Dec. 10, 1934. 

May impose licenses and reasonable regulations upon barbers 
and cosmetolog-ists not inconsistent with State law. 


NOTE: Opinion Number Follows Each Lead 



Additional compensation (138) (168) (296) 115, 126, 174 

Additional compensation, exception (168) 126 

Proliibits transfer to Hig-hway Auditing Department to State Auditor 

(57) 94 

Secretary of State has general supervision of boards and bureaus (128). 113 


Act is constitutional (46) (285) 87, 172 


(See intoxicating liquors) 


May not be ratified by convention appointed by General Assembly (22) . 61 


Appeal from Aeronautic Commission can be taken although Act forbids 
it (46) 87 


Continuing appropriation overrides long appropriation bill (207) 135 

Continuing, for Industrial Commission (71) 97 

Continuing, for Meat Inspector (94) (116) 104, 111 

Continuing, for Mineral Land Department (131) 113 

Continuing, for Motor Fuel Tax Department (207) 135 

Executive Council may supervise (115) 110 

First Class (4) (192) 51, 132 

For Assistant Purchasing Agent (224) 141 

For past services (75) 98 

For Printing Commissioner (224) 141 

For Motor Vehicle Theft Law (169) 127 

For relief, first class (192) 132 

Legislative Department (4) 51 

May not exceed total tax (55) -. 94 

Necessity for, before county contracts for highway (108) 109 

Order of payment (246) 154 

Relief appropriations (75) (272) 98, 161 

Second class paid (59) 95 

Unexpended balances (359) 199 


(See State Auditing Board) 



Application of Federal Deposit Insurance Corporation to State banks 

(315) 182 

Industrial bank, examination of (343) 195 

Foreign bank as trustee (393) 209 

In re county funds (302) 175 

Interest on county deposits (303) 179 

Pledge of securities for public deposits (278) (3C2) 166, 175 

Stock owned by Reconstruction Finance Corporation tax exempt (316) . . 182 
Taxes on capital stock (282) 171 


(See State Board of Barber Examiners) 

220 Biennial Report 


(See Intoxicating: Liquors) 


Blind Commission cannot require patient to turn over property (397)... 211 

Funds of Commission spent for surgical operation (253) 156 

(See Cities and Towns) 

(See State Board of) 

(See County Commissioners) 


Appropriation of stock by association (290) 173 

Assigning or selling assets (281) 171 

Borrowing by members (334) 192 

Change of objects by amending articles (196) 133 

Collection of penalties (206) 136 

Conversion of State into Federal association (349) 197 

Creditors paid ratably upon liquidation (323) 188 

Dividends, when (295) 174 

Examination of Railway Building and Loan (242) 151 

Losses from real estate sales, how charged (333) 192 

Preference, what amounts to (255) 156 

Securities deposited, when withdrawn (250) 155 

Taxes and fees on company in receivership (260) 157 

Voting rights of members (191) 132 

Permanent stock association (403) 213 

Withdrawals (266) 158, 213 

Withdrawal shares and notices (98) 105 

(See Taxation) 


(See Mothers' Compensation) 


(See State Board of Chiropractic Examiners) 


(Sea Local Government Budgets) 

Aldermen, terms of (99) . . 77 

Contraction of debt by (148) .. Ill 

Council flx nnlarlcn (37) 8S 

Dairy Inspectorn, appointment, powers (56) 14 

Llr<'nH«'M for JmrbtTH (413) 21S 

Munlripal ofrires. nillnic of (87) If 

No expenditure In exccsH of budfcet (322) 18C 

Refundlnir IwndH of City of Afipen valid (30) . 77 

Reflstration of warrants (IM) 132 

Attorney General op Colorado 221 


Discharge of employee (288) 173 

Examination given in conjunction with United States Employment Serv- 
ice (320) 185 

Governor may abolish, one of mine inspectors (110) 109 

Incumbent follows his work (94) 104 

Need not approve examiners of insurance companies (143) 121 

Person must take steps to secure position (43) 86 

Provisional appointee's rights (93) 104 

Provisional examinations under rules (118) Ill 

Reduce force by discharging most recent appointee (288) 173 

Removal of provisional appointees (93) 104 

State cannot pay twice for services (43) ^ 86 


Act providing abandoned railroads be turned over to Public Utilities 

Commission (53) (54) 93 

Aeronautic Commission Act (46) 87 

Appropriations not exceed total tax (55) 94 

Contraction of debt by city (148) 122 

Employment of Married Women Act (32) 78 

Excise taxes (406) 213 

Governor's call for special session, scope (24) (221) (223) 68, 140, 141 

Highway Bond Act (142) 116 

Income tax (406) 213 

Incurring a debt (142) (148) (171) (243) 116, 122, 127, 151 

Law giving escheats to old age pension fund (77) 98 

Liquor law (36) 84 

Natural gas pipeline tax (27) 69 

Ratification of amendment to United States Constitution (21) 61 

Reapportionment Act (28) 69 

Reclassification of single county (80) 99 

Remission of 50 per cent of delinquent taxes proposed (233) 143 

Resignation of member of General Assembly (74) 97 

State Normal School, Federal Loan to (171) 127 

State lands to be sold to veterans giving credit for service on purchase 

price (79) 99 

Western State College federal loan (243) 151 


Hospitalization fees from counties (369) (404) 203, 213 

Refuse to receive patients, when (369) (404) 203, 404 


Duties of Superintendent (2) 51 

Commitment of patients to (306) 180 


Accepting patients pending commitment (20) 61 

Commitment to (38) (306) 85, 180 

Federal aid construction program (165) 125 

Refund of Federal Processing Tax (199) 133 

Transfer of insane convicts to (38) 85 

222 Biennial Report 


Convict made goods, importation of (136) 114 

Good time allowances, how calculated (249) 155 

Governor terminates indeterminate sentence (164) 1 25 

Person becoming insane after conviction and sentence (317) 184 

Rights after pardon (267) 158 

Scientific experiments upon (271) 161 

Transfer from Reformatory (38) 85 

Transfer to State Hospital (38) 85 

Vote when paroled (298) 175 


Applied to I>airymen's Cooperative (244) 152 


Additional 10% fee (87) 101 

Change of objects by amendment of articles (196) 133 

Commodity Credit Corporation exempt from filing reports (237) 150 

Renewal of corporate existence (291) 173 

Renewal by foreign corporation (277) 164 

Secretary of State need not accept certificate for filing if objects are 

improper (Nudist Cult) (245) 154 


(See State Board of Cosmetologists) 


(See under various county officers) 

Cannot contract for road without appropriation (108) 109 

Excess or emergency warrants for absolute necessities (369) (375) 

(410) 203, 20r., 214 

Liable for bond of Deputy District Attorney (21) 61 

Order of payment of County Warrants (112) 110 

Reclassification (80) 99 


Fee under Motor Vehicle Act (188) 131 

May act as abstractor when (101) 107 


Contracts extending boyond term (6) 52 

Majority of, governs action (7) 52 

May supplement old age pension fund (377) 205 

Powers of (6) (7) 52 

Publication of pension list (264) 168 

Recall of (353) 198 

Tax levy for Mothers' Compensation (163) 128 


(See Local Government Budgets) 

Contingent fund (»!) 184 

Oeatlon of special fund (3^) 810 

Custody and deposit of (302) 175 

Designation of banks by county board (302) . 175 

Emergency warrants (389) (375) 203. 206 

Expenditures In exceHH of npproprlations (201) (366). . . . .134, 201 

Interest on county deposits (261) (303) 166, 179 

Mill levy for bondH (201) 184 

Mill levy for outstanding warrants (900) 184 

Order of payment of warrants (118) 110 

Obligations and warrants In excess of spprnprlntlnns (3G5) ?01 

Replacement of em»v«xl«'tl fimds (394). . "10 

Warrants registered (18) 53 

Attorney General of Colorado 223 


Attachment fees (345) 196 

May appoint new clerk when elected (35) 84 

Fees cannot be retained in fourtli class county (C3i) 191 

Powers in re insane persons (306) 180 

Practice in another county court (324) 188 

Probate fees (345) (399) 196, 212 

Vacancy in office of (3) 51 


(See under title of officer, see fees and salaries) 

Salaries of deputies (270) 161 

Vacancy when (3) 51 


Serve papers for poor person free (274) 162 


Accept only full amount of taxes (144) 121 

Bond of (201) 134 

Custody and deposit of county funds (302) 175 

Deputy, power to fill office (239) 151 

Liability for funds in banks which fail (396) 211 

Register all warrants issued (12) 53 

Warrants registered (12) 53 


(See State Dairy Commissioner) 

(See Fruits and Vegetables) 


Bond of Deputy (21) 61 


Expense accounts (276) 162 

Expenses when serving outside districts (292) 173 


Bonds and coupons in payment of assessments, when (327) (383) . . . .189, 207 



Absent voter's ballot (391) (398) 209, 211 

Change of party affiliation (350) 197 

Committeemen under party rules (391) 209 

City elections, cost of publications (247) 154 

County chairmen of Party, election of (368) 203 

Dwelling on precinct line (348) 197 

Illiterate voters may be aided (364) 200 

Nominations by petition (391) 209 

Nomination by writing name on ballot (382) •^^'TVy* 706 

Paroled convict vote (298) % 175 

Resident at Federal Hospital may not vote (102) 107 

Revocation of appointment of election judge (346) 196 

Sale of intoxicants on election day (372) 204 

Stickers may not be posted on ballots (41) 86 

Vacancy after convention but before primary (356) 199 

Vacancy in nomination filled how (370) (383) 204, 208 

224 Biennial Report 


(See State Employees) 


ESscheats go to school fund (77) 98 

hxex:tjtivb council 

No power to transfer salaries (123) 112 

Supervise and control appropriations (115) 110 


(See Federal Farm Loans) 

(See Relief, Home Owners' Loan) 

Bank stock owned by R. F. C. tax exempt (316) 182 

Commodity Credit Corporation exempt from filing corporation reports 

(237) 150 

Farm Mortgage Corporation bonds Investment for State funds (293)... 174 

Federal aid construction at Colorado State Hospital (165) 125 

Federal Deposit Guarantee Association, State funds (220) 140 

Federal Loan to Adams State Normal School (171) 127 

Federal Deposit Insurance Corporation as affecting State banks (315).. 182 

Processing tax, refund to State Hospital (199) 133 

State Treasurer custodian of advances for highway projects (304) 179 


Compensation of game warden (296) 174 

Compensation in more than one capacity (138) (168) (189) (296) 

115. 126. 131. 174 

County court fees (279) 170 

County judge fourth class county (331) 191 

Deputy County officers (70) (270) 97, 161 

District Judge's expense accounts (276) (292) 162, 1 73 

Executive Council no power to transfer salary (123) 112 

Governor's office (217) 139 

Lieutenant Governor in absence of Governor (ISO) Ill 

Mileage fees for Slate, county and precinct officers (100) lOu 

Mileage for Cosmetology Board (39) 85 

Motor Vehicle fee to county clerks (188) 181 

Past services (217) 139 

President pro tern of Senate in absence of Lieutenant Governor (190).. Ill 

Probate fees (999) 175 

Reclasslflcation of county for (80) 99 

Salary reduction act. appllrntlon of (73) (107) (111) (119) (289) 



Not used for Insurance (197) 113 


Investment of (261) 157 

Not npent fcir Inxurance on firemen (342) 1**5 


(8«« Pur« Food and Drugs) 


Sals of stock by owner of lompany (46) !»7 

Attorney General of Colorado 225 


Director may stop trucks to Inspect (105) 108 

Grade marked on fruits (105) 108 

Power of Director of Markets in re inspections and fees (105) 108 

What constitutes "selling" of eggs at wholesale (318) 185 



What are (213) 137 


Charge for fishing in natural streams (69) (339) 97, 195 

Compensation of game wardens (296) 171 


Employment of additional employees (141) 115 

Grand Mesa License (179) 129 

License for propogating fish (179) 129 


Appropriations for, first class (4) 51 

Can amend initiated act (28) 69 

Correction of errors in enrolled bills (63) 95 

Expenses of delegates to conventions (329) 191 

Lieutenant Governor not a member of (17) 54 

May be appointed special deputy in Building and Loan Department 

(203) 135 

May not appoint delegates to convention to ratify amendment to United 

States Constitution (22) 61 

Member not eligible to Oil and Gas Conservancy Commission (47) 87 

Member not eligible to office of Warden (83) 100 

Member not eligible to Highway Board (82) 99 

Member not eligible to office of Deputy Water Commissioner (341) 195 

Member's expenses (129) 113 

Payment of employees beyond adjournment (61) 95 

Per diem during recess (219) 140 

Resignation of member (74) 97 

Special Sessions of (24) (221) (223) ' 68, 140, 141 

Traveling expenses (129) (218A) 113, 140 


Correction of errors in enrolled bills (63) 95 

May abolish one of mine inspectors (110) 109 

Proclamation for special session of General Assembly (24) (221) (223). 

68, 140, 141 

Removal of member of Barbers' Board (252) 155 

Set aside unfair printing contract (124) 112 

Terminate indeterminate sentences (164) 125 


On land leased to a tenant (332) 192 


(See State Highway De.partment) 

County cannot contract for without appropriation (108) 109 

Driving livestock over newly oiled roads (147) 122 

Highway code, construction of (157) 124 

226 Biennial Report 


Deposit of bonds as capital by Insurance Company (186) 131 

Investment of trust funds in (152) 123 

Use of bonds to pay taxes (174) 128 

(See Intoxicating: Liquor) 

Act not repealed (137) 115 


(See State Compensation Insurance, Workmen's Compensation) 

Changing conditions of labor under National Recovery Act Codes (132). 114 

Expenses of, continuing appropriation (71) 97 

Jurisdiction to conduct hearing (347) 196 

Nuns not employees (409) 214 

Wages on public works (104) 108 

Waiver of interest on bond held by (367) 203 

Workmen's Compensation law in re interstate carriers (366) 203 


Additional recording fees (97) 105 


Governor cannot veto Initiated Act (28) 69 

General Assembly can amend Initiated Act (28) 69 

May Initiate Reapportionment Act (28) 69 


(See Colorado State Hospital and Colorado Psychopathic Hospital) 

Commitment (306) 180 

CTustody pending examination (306) 180 

Person becoming insane after sentenced to penitentiary (317) 184 


Admission of foreign mutual companies (362) 200 

Assets of company (287) 172 

Company from foreign country not deposit bond (168) 124 

Divisible surplus (330) 191 

Examination charges paid by company (143) 121 

Fee for service of process on Commissioner by poor person (139) 116 

Fire Loss Fund of State, not used for (127) 113 

Foreign company re-engaging in business (185) 131 

Foreign fraternal benefit societies, beneficiaries (163) 126 

Free policies given to customers (400) 212 

Home Owners' Loan Bonds deposited us capital (186) 131 

Hospital Association not selling insurance (40) 86 

Hypothecation of securities by company (fl09) 134 

License tax (161) 112 

Mutual Benefit Associations (96) 106 

Mutual companies may Insure Stale property (66) 94 

Mutual companlcM, deposits (401) 212 

Partlclpiiting contracts (330) 191 

pTale Glass (81) »» 

K.lnMuninr.. i-.,iit r:it Is (383) (381) 206. 206 

Retaliatory law (172) 127 

Service of proi-eMn on commlMsloner by poor person (139) 114 

State Compensation Insurance Fund (99) 106 

Attorney General of Colorado 227 


Benkleman-Haigler-Arickaree Project (241) 151 


Administrative expenses of department (360) 199 

Advertisement of (31) 77 

Alcohol, importation of (113) (156) 110, 123 

Beer Law of 1933 (49) (162) (229) 88, 124, 142 

Beer Law, transfer of license (60) (149) 95, 122 

Beer License fees to pension fund (134) 114 

Beer license in National Park (325) 189 

Constitutionality of proposed law (36) 84 

Disposition of city license fees (312) 181 

Expenses of department paid from general fund (122) 112 

Industrial alcohol act not repealed (137) 115 

Local option not possible (140) 115 

Medicinal Liquor law (156) (159) (206) 123, 124, 135 

Rectifying plant a distillery (230) 142 

Saloon, definition of (36) 84 

Stamp tax, who liable for (146) 121 


(See Water) 


Marriage ceremony in any county (230) (355) 142, 198 


(See State Land Board) 

(See Newspapers) 


(See General Assembly) , ^ ^" 


(See under various boards and inspectors) 

License terminates upon death and does not descend (121) 112 


(See under object taxed) 


(See State Board of Stock Inspection Commissioners) 

Driving cattle over newly oiled roads (147) 122 


Act in general (201) 134 

Act in relation to levy limiting act (72) (95) 97, 105 

Changes in budget (201) 134 

County levy for schools (173) 128 

Contingent funds (408) 214 

Does not limit expenditure of State old age pension funds (335) 192 

Excess warrants (410) 214 

Expenditure in excess of budget (322) 186 

In re schools (173) (181) 128, 130 

228 Biennial Report 

Act prohibiting- employment of married women by State unconstitu- 
tional (32) 78 

By justice of peace in any county (230) (355) 142, 198 


Continuing appropriation for (94) (116) 104, 111 

(See Insane persons) 


Discharge and reinstatement of officers (66) 96 


Redemption by judgment creditors (10) 53 

Not extingnished by deed to mortgagee, when (287) 172 


Tax levy for (153) 123 

Publishing list (153) 123 


(See Gas and Oil, Highway's) 

Additional license fee for old age pension (83) (407) 101. 214 

Certificates of title for non-residents (238) 151 

Clearance lights (160) 124 

Dealers licenses (51) 89 

Funds for administration expenses of act (91) 101 

Licensing trucks on carrying capacity (209) 136 

Motor Vehicle Theft Department, appropriation for (lOD) 109 

Power to require trucker to unload to truck limit (209) 136 

Reflectors, change in approved type (109) 109 



Need not comply with Industrial Commission Law when changing labor 

condition (132) 114 

Purchases for State not made from code violators (371) 204 


(See Military Department) 
Naturalized persons 


Publication of delinquent tax list, no newspaper In county (167) 126 

Requlrementn for legal advertising (145) (384) 121. 207 


(See Civil Service) 

Bond of Deputy Dlntrlrt Attorney (21) 61 

Incompatl»>lc ofTlror (17) (47) (82) (83) (341) 54. 87. 99. 100. 196 

Lieutenant Governor not liic<»mp.itil>lr \slth « Fair <'oinnii.ssi<>iuT or 
County Park CommiMiloner (17). ■ r>4 

(See Grh and Oil) 

Attorney General of Colorado 229 


Additional motor vehicle fees for (89) (407) 101 

Beer license fees (134) (312) 114, 181 

Budg-et does not limit county in expenditure of fund (335) 192 

County may supplement fund (377) 205 

Escheats go to school fund, not pension fund (77) 98 

Publication of list (264) 158 

Residence requirements (265) 158 


(See Convicts, State Penitentiary) 


(See Convicts, State Penitentiary) 


Plumber's license terminates on holder's death (121) 112 

(See elections) 


Governor set aside unfair contract (124) 112 


(See Intoxicating Liquor) 


(See Colorado Psychopathic Hospital) 


(See State Funds, County Funds, Local Government Budgets) 


Act providing abandoned railroads be turned over to (53) (54) 93, 93 


State Home Dormitory (125) 112 

Wages on (104) ; 108 


Law may not require abandoned roads to be turned over to Public Utili- 
ties Commission (53) 93 

May empower Public Utilities Commission to accept roads (54) 93 


Violation of act, charges, hearing (187) 131 


Initiated Act constitutional (28) 69 


Of County Commissioner (353) 198 


Abolishment of (103) 107 

Power of court to modify judgment (184) 130 

Release of inmates (184) . 130 

Transfer of inmates to Penitentiary (38) 85 

Transfer of inmates to Penitentiary by Executive Order (196) 133 

230 Biennial Report 


(See National Industrial Recovery Act) 


Classiflcation of appropriations for (192) 132 

Disbursements from State fund, how, by whom (272) 161 

Funds not used for materials for relief work by students (258) 156 

Garnishment of funds (385) 207 

Highway bond act constitutional (142) 116 

Purchase of beef not mandatory (275) 162 

Relief fund handled by County Board (166) 126 

State fund, administrative expenses may be incurred (254) 156 


Purchase license plates under contract (34) 84 


Depositary bond covers what funds of (204) 135 

Tuition for resident students (88) 101 

Withdrawal of funds from State Treasury (194) 132 


Additional levy (177) 129 

Annexation of contiguous territory to district (16) 54 

Appointment of director to fill vacancy (5) 52 

Board may not deposit funds to credit of third class district (150) 122 

Bond redemption fund, use of (216) 139 

Budgets (297) (336) 174, 194 

Changing budgets (336) 194 

Consolidation of first class districts (15) 54 

County Superintendent's supplies (182) 130 

District may lease parochial school (135) 114 

District not become member of Protective Association (358) 199 

Employment of teacher for another district (205) •. 135 

Executive Committee (50) 88 

Expense of printing laws (395) 211 

Funds, custody of (1) (190) 51. 122 

Levy under Local Government Budgets Act (173) 128 

Levy may be ordered by Tax Commission (13) 68 

Local government budgets act (173) (181) 128. 130 

Minimum salaries (11) (23) (337) 53. 67. 194 

Minimum salary, waivor of by contracting for lesser amount (11) (23). 

53, 67 

National Vocational Kducation, apportionment (212) 137 

Paroled convict vote at election (298) 176 

Pensions dlscontlniifd In what dlstrirts (227) 141 

ReclasBincatlon (85) 100 

Residents of relief ramps (387) . . 207 

Registration of warrants (33) (248) s4, 155 

Salaries (see minimum salaries) 

Second cla88 dlstrlc-t l)ccomeH first cImhh district, when (357) . . r.»y 

Speclai teachers compensation (307) (337) ISO, 194 

Slate aid (177) 129 

State supfrlnttMuhMit no power ovrr higher learning (186). . . . . 112 

Surplus in special funds (997) . . 174 

Transportntloi) to pnrorhlnl srhonln (183) (358) I :0. 198 

Union High 8<hool DIstrlctH (50) 88 

Vaciim-ioM on )>oar<l, appolntmtMits to fill (6) 62 

WarrantN paid In ord<>r of registration (8) , 62 

Warrants, rcglntrntlon of (83) 84 

Attorney General of Colorado 231 


General Supervision of Boards and Bureaus (128) 113 


(See Fraudulent Practice Act) 


Emergency fund (114) 110 

Fort Lewis School and Extension Department not separate institutions 

(114) 110 

Participation in federal retirement plan (208) 136 

Powers in re leasing of land (235) 150 

Revolving fund (176) 129 

(See Executive Council) 

Audit of claims (294) 174 

Powers in re expenditures of legislature (19) 60 

Powers in re State purchases (18) 59 


License revoked only in legal manner (326) 189 

When County Clerk may act as abstractor (101) (340) 107, 195 


Reinstatements (84) 100 

Revocation of certificate (286) 172 


Revocation of license of member of board (44) 87 

Who must have license, fees (214) 151 


Compensation of board (234) 143 

Gratuitous worker needs no license (78) 98 

Removal of board members (252) 155 

Revocation of licenses (64) 96 

Rules governing schools (161) <?.... .rf". 124 


Chiropractor not sign death certificate (228) 142 

Construction of law (117) Ill 

Funds of board (180) 130 

Salary of Secretary (170) (180) (189) 127, 130, 131 


Issuance of certificates (222) 140 

Renewal fees for shop license (154) 123 


Advertising (68) 96 

Practice by corporations (68) 96 

Practice by partnership or groups (319) 185 

Practice without license, what amounts to (68) 96 


Issuance of licenses (76) 98 


May authorize use of State Seal (9) 53 

232 Biennial Report 

state board of nurse exajviinbrs pag'> 

Revocation of license, how (314) 182 


Inspectors, how paid (211) 136 

Inspection fees (373) 204 


Annual report (263) 158 

Fund not supplemented from General Fund (257) 156 

Grovernor may abolish (110) 109 


(Bonds of, see State Funds) 


Insurance upon employees of relief office (284) 172 

Not an insurance company (99) 105 

Old warrants cancelled (392) 209 

Warrants drawn during bank moratorium (25) 68 


Appointment of inspectors in cities (56) 94 

Cooperative marketing- act applied to dairymen's cooperative (244) 152 

Dairy code in re inspection and licensing (86) 100 

Regulation in Home Rule Cities (197) 133 

Regulation outside corporate limits of towns (225) 141 


Act prohibiting employment of married women, unconstitutional (32) 78 


Assessments based upon reduced salaries (90) 101 

Covers State E^mployment Service Department (363) 200 

Status of employees in various departments (305) 179 

What employees Included (305) 179 


Administrative expenses of Liquor Department (360) .199 

Appropriations not exceed tax (66) 94 

Auditing claims (294) 174 

Custody of University funds (62) 89 

Institutional emergency funds (114) 110 

Investment of (301) 175 

Liquor license department expenses paid from general fund (192) 112 

Not used to supplement mine inspection fund (267) 156 

Obligations hold or owned by State not compromised (321) 185 

Protected by Federal Deposit Guarantee Association (220) 140 

Public ofrice may pay expenses of adminlsterlnR law out of income from 

law (49) 88 

Redemption of Insurrection Bonds (374) 206 

Refunding State bonds (376) 203 

Unexpended balnnreH at end of tlsral year (369) 199 

Waiver of Interest on bond held by State department (367) 200 

Warrants drawn during Iwink moratorium (26)... 68 

Water Defense Funds (MO) 1S6 

(See Hall Insurance) 

Attorney General of Colorado 233 


(See Highways) 

Damages from constructing viaduct (280) 171 

Highway trucks must be licensed (241) 151 

Rights of way exempt from special taxes (62) 95 

Transfer of auditing division to State Auditor (57) 94 


Contract for Dormitory not controlled by Section 29, Art. V (125) 112 


(See Colorado State Hospital) 


Continuing appropriation for Mineral I^nd Department (131) 113 

Invest in Federal Farm Mortgage Bonds (293) 174 

Veterans cannot be given credit on purchase of State lands for service 
in army (70) 97 


Adams State Normal, Federal Loan for (171) 127 

Warrants for Teachers College heating plant paid (338) 194 

Western State College, Federal Loan for (243) 151 


(See Officers, Civil Service) 


Transfer of convicts (38) 85 


Exempt from taxation (62) 95 

Insurance in mutual companies (58) 94 


Dormitory for State Home (125) 112 

License plates purchased under contract (34) 84 

(See Reformatory) 


Use of, for advertising purposes (9) 53 

(See State Normal Schools) 


Additional employees in Motor Fuel Department (141) 115 

Appropriation for Motor Fuel Department (207) 135 

Custodian of Federal advances for highway projects (304) 179 

(Custody of Forrester Trust Fund (42) 86 

Custody of University funds (52) (106) 89, 108 

Duty in re weights and measures (67) 96 

Fire loss fund, care of (127) 113 

Funds for administration of Motor Vehicle Act (91) 101 

Refund of fees collected under unconstitutional law (190) 132 


(See University of Colorado) 


(See General Assembly, Constitutional Law) 


BizxxiAL Rrp«:»KT 

Attorney General op Colorado 235 

TAXATION — Continued Page 

Taxes levied subsequent to sale (14) 54 

Tax sale cuts of titles originating in former sales (30O) 175 

Treasurer may not accept less than full amount of taxes (144) 121 


Approve Increase of levy (900) 134 

Jurisdiction to review assessment (402) 212 


(See Cities and Towns) 


Forrester Fund (42) 8C 

Home Ow^ners' I>»an Cor|>oration bonds (ISA) 123 

Investment of (152) 123 

(See Relief) 


Custody of funds of (52) (106) S9, 10l> 

Mackey Auditorium loan, payment of (175) 128 

U»e of permanent land fund (310) 181 


Defense fund used for what (210) . 136 

Duties of Water Commissioner (412) . . 215 

Benkleman-llalgler-Arlckiree Project (241) 151 


Federal loan for construction (243). . ... 151 

Monument Reservoir (361) .197 

Reservoir on State land (351) • . 197 

(See Industrial Commission) 


JAN 41984 

Stite Publications Oepo:.itjFy